9911796707
TMI Blog2008 (1) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... peals are dismissed X X X X Extracts X X X X X X X X Extracts X X X X ..... s no apparent mistake in the assessment, which has become final under Section 71 of the Act. Against the said order of the Tribunal, the instant appeal has been filed by the Department, in which it has been claimed that the following three substantial questions of law are arising from the order of the Tribunal: "(i) Has the Tribunal not committed grave error in arriving at the conclusion that the department did not choose to file appeal before the Commissioner (Appeals); when as per section 85 of the Finance Act "any person" does not include the department; has the opportunity for Rectification of Mistake & Revision (under this section) been taken? (ii) Whether the action of department i.e. issue of Show cause notice against improper/faul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that before the Tribunal, it was not the stand of the appellant that provision of Section 74 of the Act is not applicable in the instant case, rather the notice was issued and impugned order was passed under Section 73 of the Act. While referring to the portion of the impugned order, where the Departmental representative had submitted before the Tribunal that the order passed by the Superintendent of Service tax was perfectly legal to recover the Service tax which has escaped the assessment and provision of Section 74 of the Act was fully applicable to the facts and circumstances of the case. She further submits that notice under Section 74 of the Act can be issued within two years of the date of order, therefore, the said notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually, the show cause notice was to be issued under Section 73 of the Act, but inadvertently, the provision was wrongly mentioned as Section 74. Such plea was never taken by the appellant either before the Appellate Authority or before the Tribunal. Rather before the Tribunal, the representative of the Department had categorically taken the stand that the Revenue Authority was within its power to pass the impugned order under Section 74 of the Act. Undisputedly, Section 74 of the Act pertains to rectification of the mistake in the order and a rectification can only be made by the same Authority if the mistake is apparent on the record. In the grounds of appeal, the appellant has taken the stand that provision of Section 74 of the Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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