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TMI Blog2017 (3) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... rt at Ahmedabad. The Hon'ble High Court even though did not interfere with the order of this Tribunal, vide order dated 28.01.2016 observed that it is open for the appellant to file a rectification application before this Tribunal and the High Court did not prevent them in doing so. With these observations, the Tax Appeal was dismissed. 3. The Ld. Advocate submits that they are entitled to the benefit: of first proviso to Section 78 of the Finance Act, 1994 in reduction of penalty to 50% of the service tax short levied or not paid where true and complete details of transactions are available in the specified record. He fairly submits that the said benefit was not claimed in response to the show cause notice, also not before the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case or C.C.E., Belapur, Mumbai vs. RDC Concrete (India) P. Ltd. 2011 (270) ELT 625 (SC). Ld. A.R. further submits that the present rectification application is filed after one year after passing of the order, whereas, period of six months from the date of its order is prescribed in the statute for filing such application, hence it is barred by limitation. In support of his argument, he relies upon the judgment of the Hon'ble High Court of Gujarat in the case of Liladhar T.Khushlani vs. C.C. - 2017 - TIOL - 241 -HC- AHM - CUS. 4. In rejoinder, Shri Tripathi, Id. Advocate submits that since he matter has been sent back by the High Court for reconsideration therefore, time limit would not apply. He also refers to the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst time, which in my opinion, not permissible exercise of the limited power of rectification of mistake, in view. of the Judgment of the Hon'ble Supreme Court in the case of C.C.E., Selapur Mumbai vs. RDC Concrete (India) P. Ltd. - 2011 (270) ELT 625 (SC). Laying down the principle their Lordships observed as follows: 22. For the aforestated reasons, we are of the view that the CESTAT exceeded its powers and it tried to re-appreciate the evidence and it reconsidered its legal view taken earlier in of rectification application. In our opinion, the CESTAT could not have done so while exercising its powers under Section 35C(2) of the Act and, therefore, the impugned order passed in pursuance of the rectification application is bad in la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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