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2019 (4) TMI 484 - AT - Service TaxRectification of mistake - Held that - The amount of entire demand, as was confirmed, stands already paid, that too without protest. This amounts to admission. Procedural law of limitation cannot supersede the substantial law of admission. Hence, irrespective there was found no wilful malafide intent on part of appellant to evade duty but fact remains is that the liability remained suppressed till it was noticed by Department. It is thereafter that the liability was discharged by the appellant. There is no error apparent on record - Application for ROM dismissed.
Issues:
Application under Section 83 of the Finance Act read with Section 35C (2) of the Central Excise Act, 1944 for rectification of mistake in Final Order No. 52002 /2018 dated 22.05.2018. Analysis: The judgment pertains to an application for rectification of mistake in a final order related to a demand confirmation despite setting aside the penalty. The appellant argued that since there was no case of fraud or suppression of facts found, the extended time limit could not have been invoked, making the demand time-barred. However, the demand was still confirmed, which was deemed an error apparent on record. The respondent contended that the order was speaking, discussing all relevant facts and laws, and that there was no error apparent on record. It was argued that under the guise of rectification, recalling or reviewing the order was not maintainable. Upon hearing both parties and examining the final order, the judge noted that the entire confirmed demand had already been paid without protest, amounting to an admission. It was highlighted that procedural law of limitation cannot override the substantial law of admission. Although no wilful malafide intent to evade duty was found, the liability remained suppressed until noticed by the Department, after which it was discharged by the appellant. The judge concluded that there was no error apparent on record, as the payment was confirmed despite the penalty being waived. It was stated that the applicant's prayer could be a subject of appeal but not of rectification or review. Consequently, the application for rectification was dismissed. The judgment was pronounced in open court on 15.03.2019 by Mrs. Rachna Gupta, Member (Judicial) of the Appellate Tribunal CESTAT New Delhi.
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