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TMI Blog2016 (9) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... f so called mistakes sought at Sr. No. (ii), (iii) and (iv) do not fall in this category. - ROM rejected on these grounds. Decided partly in favor of assessee. - ST/ROM/51471/2015 in ST/56111/2013-CU. (DB) - Misc Order No 51099/2016 - Dated:- 11-8-2016 - Ms. Archana Wadhwa, Member (Judicial) and Mr. R.K. Singh, Member (Technical) Shri Sujit Ghosh, Advocate - for the Appellant Shri K. Poddar, D.R. for the Respondent ORDER ROM application is filed seeking rectification of mistake claimed to be apparent in the Final Order No. 51612/2015 dated 14.5.2015. 2. Ld. Advocate for the appellant categorically stated that he is pressing that ROM application only on the following points. The grounds contended for the sought re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 29 of the order in original which is reproduced below: Further the noticee contended that they liable to pay service tax under Intellectual Property Service of the Finance Act only in respect of patents and designs which are registered in India. Accordingly, they paid service tax after claiming 5% reduction from service tax on account of deposit of R D cess in terms of Notification 17/2004-ST dated September 10,2004. The Noticee was not entitled to the benefit of Notification as the Noticee had not submitted the documentary evidence in this regard. Further, the interest also liable to be charged and recovered from them under Section 75 of the Act ibid. The Id. Advocate contended that the above para clearly shown that the Id. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order and is beyond to scope of rectification of mistake. 4. We have considered the contentions of both sides and perused the records. As regards the rectification of mistake relating to Point No. (i), Id. DR agrees that there is an inadvertent interchange of figures inasmuch as the service tax demand under IPR service is ₹ 13,12,41,198/- and under franchise service is ₹ 20,27,06,713/ but these figures have got inter changed in opening para of the CESTAT order. Accordingly, we order rectification of the said mistake as a result of which the opening para of the CES TAT order would read as under: Appeal has been filed against order-in-original No, 92-94/AKM/2012 dated 29.11.2012 passed in respect of three show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word 'mistake is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under Section 22, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record, A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of penalty under Sections 76 and 77 is obviously kept open in the CESTAT order which has remanded the matter for de novo adjudication. Further whether it is fit case for invocation of Section 80 for non imposition of penalty is not within the scope of rectification of mistake as it would require long drawn reasoning and analysis. The Supreme Court in the case of CCE, Belapur Vs. RDC Concrete (India) P. Ltd. - 2011 (270) ELT 625 (SC) = 2011-TIOL-77-SC-CX has also so held as is evident from the quotation from the said judgement reproduced below : This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long draw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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