2023 (4) TMI 612 - HC - Service Tax

Rectification of mistake - error apparent on the face of record or not - application for rectification of mistake under Section 74 of the Finance Act, 1994, filed within time or not - HELD THAT - The explanation offered by the petitioner is that application dated 14.09.2022 was sent by registered post acknowledgment due and though there is a proof of dispatch, and there has been no acknowledgment card received by it. This writ petition stands disposed, permitting the petitioner to appear before the respondent on 19.04.2023 at 10.30 a.m. without expecting any further notice in this regard, with a copy of application dated 14.09.2022 and all documents in support of the same. Let the petitioner be heard, the application be considered and orders be passed within a period of four (4) weeks from that date, in accordance with law.

Summary

Issues involved:
The petitioner seeks a mandamus for rectification of a mistake in an Order-in-Original. The main issue is the timeliness of the application for rectification under Section 74 of the Finance Act, 1994.

Details of the Judgment:

Issue 1: Timeliness of Application for Rectification
The petitioner filed an application for rectification dated 14.09.2022, seeking correction of an Order-in-Original dated 20.10.2020. A reminder was sent on 09.11.2022 to the Assistant Commissioner of GST & Central Excise, Puducherry, as there was no communication regarding the application. The respondent received the reminder on the same day. The limitation for filing such an application is two years from the date of the order. The respondent argues that the reminder, dated 09.11.2022, is beyond the time limit. However, considering that the reminder refers to the application dated 14.09.2022, the court deems the application to have been filed in time.

Issue 2: Proof of Dispatch of Application
The petitioner claims that the application dated 14.09.2022 was sent by registered post acknowledgment due. Although there is proof of dispatch, the petitioner did not receive an acknowledgment card. This raises a question regarding the receipt of the application by the authority.

Judgment Summary:
The writ petition is disposed, allowing the petitioner to appear before the respondent on 19.04.2023 at 10:30 a.m. without further notice, with a copy of the application dated 14.09.2022 and supporting documents. The respondent is directed to hear the petitioner, consider the application, and issue orders within four weeks from the said date, following the law. No costs are imposed, and the connected miscellaneous petition is closed.