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TMI Blog2022 (4) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... as mentioned in the above provision, depending upon the facts of each case. This particular perusal is sufficient for me to hold that once an application for rectification of mistake has been adjudicated by the original adjudicating authority on the merits, the final order of original adjudicating authority irrespective that ROM was rejected or allowed, i.e. irrespective that the original order was amended or not, the date for original order to attain finality is the order of the said ROM application. 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. The submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, Chartered Accountant for the appellant Mr. Mahesh Bharadwaj, Authorised Representative for the Respondent ORDER The present appeal has been filed assailing order in appeal no. 153/21 dated 15.7.2021 vide which the Commissioner (A) has rejected the appeal before him on the technical grounds of limitation holding the appeal to have been filed after expiry of 813 days from the prescribed period of two months 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute. The order is alleged to have wrongly considered the relevant date of order as 4.9.2018. Order is accordingly prayed to be set aside and appeal is prayed to be allowed. 5. To rebut the submissions, learned DR for the respondent has laid emphasis upon para 7.3 of the order under challenge. Specific finding in said para has been impressed upon which is as follows: I find that the ROM application is not filed for any rectification 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided. (3) Subject to the other provisions of this section, the [Central Excise Officer] concerned- (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 Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected or allowed, i.e. irrespective that the original order was amended or not, the date for original order to attain finality is the order of the said ROM application. Though the learned DR has impressed upon the findings of the Commissioner (A) in para 7.3 of the order under challenge (as quoted above), but from the perusal of the copy of the ROM order dated 23.11.2020 as placed on record, there are two mistakes alleged qua the order dated 4.9.2018, as follows: i) While 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case to the Commissioner (A) to deal with the appellant s appeal treating it to have been filed within the prescribed period as per Section 85 ibid. 12. Single Bench of this Tribunal also in the case of Omkar Engineers v Comm of Central Excise, Pune reported as 2017 (52) STR 72 (Tri-Mumbai) has held that once the application of section 74 gets rejected by the Additional Commissioner the order of Additional Commissioner becomes final on the rejection of the said application and thus 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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