2022 (4) TMI 1106 - AT - Service Tax

Condonation of delay of 813 days in filing appeal - relevant date - rectification of mistake - Whether it is 4.9.2018 the date of order in original or it is 23.11.2020 the date when the original authority communicated the order dated 23.11.2020 rejecting the ROM to the present appellant to be the relevant date under section 85(3A) of the Finance Act 1994 for period of two months therein to reckon? - HELD THAT - Perusal of provision of section 74 of the Finance Act 1994, makes it clear that after an ROM has been filed the order wherein the mistake has been alleged can be amended in any possible way, as mentioned in the above provision, depending upon the facts of each case. This particular perusal is sufficient for me to hold that once an application for rectification of mistake has been adjudicated by the original adjudicating authority on the merits, the final order of original adjudicating authority irrespective that ROM was rejected or allowed, i.e. irrespective that the original order was amended or not, the date for original order to attain finality is the order of the said ROM application. The perusal makes it clear that the appellant assessee had since paid certain amount of tax and the demand was raised on the gross amount that the absence of the benefit of cum tax was alleged to be an error apparent on record. The submission of the learned DR that the prayer in the application was such which could be raised before the appellate authority as above plea is held to have justifiably been raised by the original adjudicating authority only, cannot be agreed upon. Single Bench of this Tribunal also in the case of OMKAR ENGINEERS VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE 2017 (2) TMI 263 - CESTAT MUMBAI has held that once the application of section 74 gets rejected by the Additional Commissioner the order of Additional Commissioner becomes final on the rejection of the said application and thus the relevant date for computation of time period under Section 85 of Finance Act is the date of decision of date of ROM and not the date of O-I-O. In the present case the said order was passed by original adjudicating authority on 23.11.2020. The same was received by the appellant on 27.11.2020. There is no denial about the said date of Communication. The appeal filed before Commissioner (A) on 25.1.2021 is therefore two days prior the expiry of the statutory period of limitation i.e. 2 months. The findings of the Commissioner (A) are therefore held wrong. Since the order of Commissioner (A) was only on the ground of limitation the present matter is remanded back to the Commissioner (A) for adjudication on merits - appeal allowed by way of remand.

Summary

Issues:
- Appeal against rejection on grounds of limitation
- Date for reckoning period of two months for filing appeal
- Application for rectification of mistake and its impact on limitation period

Issue 1: Appeal against rejection on grounds of limitation
The appellant filed an appeal assailing the order rejecting the appeal before the Commissioner (A) on the grounds of limitation. The original order was passed on 4.9.2018, proposing recovery of service tax along with interest and penalty. The appeal was rejected by the Commissioner (A) due to being filed after 813 days from the prescribed period of two months from the date of the original order.

Issue 2: Date for reckoning period of two months for filing appeal
The main contention revolved around the relevant date for computing the period of limitation for filing the appeal. The appellant argued that the date for reckoning should be when the original adjudicating authority communicated the rejection of the application for rectification of mistake, which was on 23.11.2020. The appeal was filed on 25.1.2021, within the two-month period from the communication date.

Issue 3: Application for rectification of mistake and its impact on limitation period
The appellant contended that the relevant date for the limitation period should be the date of communication of the rejection of the rectification of mistake application, not the date of the original order. The Tribunal analyzed the provisions of Section 74 of the Finance Act 1994, which allows for rectification of mistakes in the original order. The Tribunal held that once an application for rectification of mistake has been adjudicated by the original authority, the finality of the original order is based on the decision on the rectification application.

Judicial Precedents and Decision
The Tribunal referred to previous judgments to support its decision. It cited a case where the relevant date for computation of the time period was held to be the date of the decision on the rectification of mistake application. Based on the analysis of relevant provisions and precedents, the Tribunal concluded that the relevant date for reckoning the two-month period for filing the appeal was the date of communication of the rejection of the rectification of mistake application. As the appeal was filed within this period, the order rejecting the appeal on the grounds of limitation was set aside, and the matter was remanded back for adjudication on merits.

Conclusion
The Tribunal held that the relevant date for reckoning the two-month period for filing the appeal was the date of communication of the rejection of the rectification of mistake application. As the appeal was filed within this period, the order rejecting the appeal on the grounds of limitation was set aside, and the matter was remanded back for adjudication on merits.