9911796707
TMI Blog2022 (4) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... nths from the date of order appealed against. The facts in brief are as follows: 2. That the appellant is registered under the category of Business Auxiliary Services and were engaged as contractor of M/s. Indian Oil Corporation Ltd. to run and operate a company owned and company operated petroleum retail outlet. Vide show cause notice no. CE-5/ST-II/JDR/Narendra/233/11/594 dated 20.4.2018, the service tax for an amount of Rs. 94,969/- from the period October 2016 to June 2017 was proposed to be recovered from the appellant along with the interest and the proportionate penalty. The said proposal was initially confirmed by order in original (O-I-O) no. 1/2018 dated 4.9.2018. The appeal thereof has been rejected vide the order under challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification of mistake in the impugned order. Whereas, the ROM application filed for an issue which is, as per the applicant, required to be considered in the impugned order." 6. It is submitted that since the ROM was actually not maintainable the relevant date for computing the period of limitation for the appeal before the Commissioner (A) has rightly been held as 4.9.2018. Hence there is no infirmity in the order under challenge. Appeal is accordingly prayed to be dismissed. 7. After hearing the parties it is observed and held as follows: There is no denial that the original adjudicating authority passed the order on 4.9.2018. There is also no denial that the assessee appellant moved an application before original adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed- (a) may make an amendment under sub-section (1) of his own motion; or (b) shall make such amendment if any mistake is brought to his notice by the assessee or the 11[Principal Commissioner of Central Excise or] Commissioner of Central Excise or the Commissioner of Central Excise (Appeals). (4) An amendment, which has the effect of enhancing the liability of the assessee or reducing a refund, shall not be made under this section unless the [Central Excise Officer] concerned has given notice to the assessee of his intention so to do and has allowed the assessee a reasonable opportunity of being heard. (5) Where an amendment is made under this section, an order shall be passed in writing by the [Central Excise Officer] concerned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e confirming the demand, the gross amount charged / received has not been considered as including of tax, as claimed by them in their reply dated 24.8.2018 to the SCN dated 20.4.2018. Demand was raised on gross amount which was including of tax payable. Therefore, the benefit of cum tax should have been given. ii) On identical facts, in their own case for the earlier period, the benefit of cum tax has been extended by the Hon'ble Commissioner vide OIA no. 397(CRM)ST/JDR/2019 dated 25.4.2019. 10. 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. In view thereof I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. Even Hon'ble High Court of Madras in the case of Sree Daksha Property Developers Pvt. Ltd. v CCE Coimbatore reported as 2016 (44) STR 236 (Mad.) has held that the period of adjudication about the objection as has been raised by the Department in the present case as follows: "After hearing the learned counsel appearing for the parties and perusing the materials placed on record, in my view, the power under section 74 of Finance Act to rectify a mistake cannot be put under a straight jacket formula and each case has to be tested on its own facts. What is a mistake apparent from the records will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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