2020 (9) TMI 303 - HC - Central Excise

Rectification of Mistake/Review of Order - non-compliance with the rules of natural justice - HELD THAT - While it may be a fact that Ext.P5 communication was issued to the petitioner without hearing him on his Rectification of Mistake Application, that by itself may not justify an interference with Ext.P5 communication in these proceedings under Art.226 of the Constitution of India. A reading of Ext.P4 document clearly reveals that, although styled as a Rectification of Mistake Application, it is in effect an application seeking a review of Ext.P3 order of the Assistant Commissioner. Under the Statute in question, there is no express power of review conferred on the Assistant Commissioner. As a statutory authority, he cannot be seen as possessing any inherent power of review either. Ext.P5 communication of the Assistant Commissioner, that refuses to consider the application of the petitioner for a review of Ext.P3 order, albeit styled as a Rectification of Mistake Application, does not require any interference. Petition dismissed.

Summary

Issues:
Impugning Ext.P5 communication for refusal to consider Rectification of Mistake Application without hearing the petitioner.

Analysis:
The petitioner challenged Ext.P5 communication issued by the Assistant Commissioner of Central Taxes, which informed him that his Rectification of Mistake Application against the order-in-original could not be considered as the legality of the demand of service tax was confirmed in the original order. The petitioner argued that Ext.P5 was issued without hearing him, violating the rules of natural justice. The petitioner sought to quash Ext.P5 and remand the matter for fresh consideration.

Upon hearing both parties, the court noted that the Rectification of Mistake Application was essentially a review of the original order rather than a mere rectification. The Assistant Commissioner, being a statutory authority, did not have the power of review conferred by the statute or inherent review powers. Therefore, the court found that Ext.P5, which refused to consider the petitioner's application for review under the guise of rectification, did not warrant interference in proceedings under Art.226 of the Constitution. The court emphasized that even if an order lacks jurisdiction, it may not be interfered with if it reflects the correct legal position.

Consequently, the court dismissed the writ petition challenging Ext.P5 communication, as it failed to establish grounds for interference.