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2018 (8) TMI 1598 - HC - Service TaxJurisdiction - power of Commissioner to rectify his mistake - Held that - Sub-section (1) of section 74 of the Finance Act, 1994 empowers the Central Excise Officer who has passed any order under the provisions of this Chapter to rectify any mistake apparent from the record within two years from the date of passing of the order - the Commissioner had the powers of rectification. His belief expressed in the impugned communication dated 29.06.2017 was contrary to the statutory provisions - Commissioner of Central Excise shall dispose of petitioner s application for rectification preferably by 30.06.2018 - petition disposed off.
Issues: Challenge to order of Adjudicating Authority and refusal for rectification by Commissioner of Central Excise.
Analysis: 1. The petitioner, a private limited company, challenged an order confirming service tax demand by the Adjudicating Authority and refusal for rectification by the Commissioner of Central Excise. The petitioner had undertaken a turnkey project for the Surat Municipal Corporation, and the Service Tax department alleged non-payment of service tax. The impugned order dated 23.03.2017 confirmed the demand with interest and penalty. 2. The petitioner applied for rectification under a communication dated 15.05.2017, citing apparent errors in the order. However, the Additional Commissioner, through a communication on 29.06.2017, stated that there was no provision in law for rectification of mistakes in the order-in-original. This was contrary to Section 74 of the Finance Act, 1984, which empowers the Central Excise Officer to rectify any mistake apparent from the record within two years of passing the order. 3. The Court noted that the Commissioner of Central Excise had the power of rectification as per statutory provisions, despite the belief expressed in the communication dated 29.06.2017. The Court set aside this communication and directed the Commissioner to dispose of the petitioner's rectification application by a specified date. The Court refrained from expressing any opinion on the merits of the dispute, concluding the petition at that stage.
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