2016 (2) TMI 870 - AT - Service Tax

Validity of rectification of its order by the Commissioner - principle of natural justice - although the respondent appeared before the Commissioner for hearing, it requested vide letter dated 29.03.2008 for one month s time. The Commissioner did not reject its request but at the same time went ahead and passed an order dated 30.04.2008 without notice to it and so the impugned order was in effect passed without personal hearing. Therefore, there was a mistake apparent from the records which needed rectification. - Held that - Revenue has not been able to produce any evidence before us to show that vide letter dated 29.03.2008 the respondent had given up its right to be heard in person. It is thus evident that the order dated 30.04.2008 was passed without granting personal hearing when there was a request made for the same and without rejecting that request. It is certainly an error which is apparent from the records of appeal and such an error renders the orders to be a nullity. - Decided against the revenue.

Summary

Issues:
Appeal against order seeking rectification of mistake in an earlier order without personal hearing.

Analysis:
The case involved an appeal against an order issued by the Commissioner in response to a Rectification of Mistake (ROM) application. The appellant, Revenue, contested that the order was not sustainable as there was no error apparent on record. They argued that the original order was not ex-parte as the respondent had multiple opportunities for hearings. On the other hand, the respondent claimed that the order was passed without personal hearing despite their request for an extension of time. The key contention was whether the order dated 30.04.2008 was valid or not due to the lack of personal hearing.

The Tribunal examined the facts, including the sequence of events leading to the order dated 30.04.2008. It was noted that the respondent had indeed requested one month's time before the order was passed, indicating a desire for a personal hearing. The Tribunal observed that the order was passed without granting a personal hearing, despite the request, making it an error apparent from the records. Citing legal precedents, the Tribunal emphasized the importance of a valid determination and the consequences of errors in jurisdiction. Referring to a Bombay High Court case, it was highlighted that dismissing an appeal without rejecting a request for personal hearing constitutes an error in the eyes of the law.

Based on the analysis, the Tribunal concluded that there was an error apparent in the order dated 30.04.2008, as it was passed without granting a personal hearing despite the respondent's request. Therefore, the impugned order issued in response to the ROM application was deemed valid. Consequently, the appeal was dismissed, affirming the decision based on the legal principles discussed in the judgment.