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TMI Blog2015 (5) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.09.2006. Therefore, the number of days for period paid were 54 days whereas it is shown as 115 days. Therefore, there is a mistake apparent on record for which impugned order is required to be reconsidered for calculation purpose whether the penalty has been imposed by calculating 54 days or 115 days for appellant and thereafter to arrive at the correct amount of penalty imposable on the appellant - matter remanded back - Rectification done. - Appeal No. ST/55647 & 55855/2014-ST(SM) - - - Dated:- 24-3-2015 - Ashok Jindal, Member (J),J. For the Appellant : Shri Rupinder Singh, Adv. For the Respondent : Ms. Ranjana Jha, DR ORDER Per: Ashok Jindal: The appellants are in appeal against the impugned orders. As both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le application of rectification of mistake within two years from the date of receipt of the order. He submits that as they have filed the application of rectification of mistake, therefore, the adjudication order was under consideration by the Adjudicating Authority and has not attained for finality. In these circumstances, order of dismissal of the appeal by the Ld. Commissioner (A) on the ground that appeal has been filed beyond a period of limitation is not sustainable. To support his contention he relied on the decision of this Tribunal in the case of Shree Lotus Exports Vs. CCE Trichy-2011 (24) STR 444 (Tri-Chennai). For the appeal against the dismissal of their appeal on the ground that there is no mistake apparent on record, the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled for any benefit of section 74 of the Finance Act, 1994. 6. Heard the parties. Considered the submission. 7. I have gone through provision of section 74 of the Finance Act, 1994 which is reproduced here for the ease of convenience as under: 74. Rectification of mistake.- (1) With a view to rectifying any mistake apparent from the record, the [Central Excise Officer] who passed any order under the provisions of this Chapter may, within two years of the date on which such order was passed, amend the order. (2) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub- section (1),the [Central Excise Officer] passing such order may, notwithsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter shall apply accordingly. 8. From the perusal of the provisions I find that if there is a mistake apparent on record the application for rectification of mistake can be filed within 2 years of the date of which such order was passed. Admittedly in this case the appellant has filed the application on Rectification of Mistake within two years of the order of adjudication. Now the issue comes before me whether there is a mistake apparent on record. For the ease of convenience the calculation sheet is reproduced as under:- 9. On going through the calculation shown in the calculation sheet for imposition of penalty I find that for the month of July 2006 the due date is 05.08.2006 whereas service tax was paid by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal has held in para 3 as under: I find that as per Section 74 of the Finance Act, 1994, an application for rectification can be filed within a period of two years from the date of which the order stated to have contained errors was passed. Therefore, the assessee had filed the rectification application within the period prescribed in the statute. Therefore, the period of limitation of filing the appeal to Commissioner (A) is to be reckoned from the date of which the order has been passed on the rectification application. Since such application was disposed of on 27.09.2010, and the appeal was filed before the Commissioner (A) on 18.10.2010, the appeal could not have been dismissed on the ground of time-bar. Since there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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