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TMI Blog2022 (5) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 date of 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 submission of the learned DR that the prayer in the application was such which could be raised before the appellate authority as above plea is held to have justifiably been raised by the original adjudicating authority only, cannot be agreed upon. Thus, the relevant date for a period of two months to reckon in terms of section 85 of the Finance Act 1994 is the date when the original adjudicating authority after deciding the application praying for rectification of mistake in the original order passed by the said Original Adjudication order and communicated the same to the said applicant - in view of the adjudication sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 3. I have heard Mr. O.P. Agarwal, Advocate for the appellant and Mr. Mahesh Bharadwaj, Authorised Representative for the Department. 4. It is mentioned on behalf of the appellant that the original Adjudicating Authority had passed the ex-party order mentioning that despite four opportunities of personal hearing none appeared before him for the appellant. It was also recorded by the original Adjudicating Authority that no written defence submission was also provided by the service provider of the applicant. Learned Counsel has impressed upon the said mention was the error apparent on the record of the said order as a written detailed reply to impugned show cause notice was submitted by the appellant and the same was acknowledged to be received by the department on 26.07.2019. It is for the said reason and also for the non-consideration of the submissions in the said reply explaining no liability of the appellant that the appellant moved an application praying for rectification of the mistake in the said order. The application was filed on 06.10.2020, though it got rejected on the same date i.e. 06.10.2020 but it is the date of this rejection which is relevant for computing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case are concerned Commissioner (Appeals) has rather formed a prima facie opinion in favour of the appellant / service operator. Commissioner (Appeals) in Para 4.1 of the order under challenge has also observed as follows: In para 9, it has been held that the appellant had not filed any reply to the show cause notice. It is not correct. The appellant had filed reply to the show cause notice vide their letter dated 26.07.2019 and the same has not been considered while passing the impugned order. Photocopy of the reply so filed and duly acknowledged is enclosed herewith. Despite the said observations, Commissioner (Appeals) in para 8.3 of the order under challenge had mentioned that no mistake was found in the original Adjudicating Authority. It is held that since the application for rectification of mistake was rejected, the relevant date for computing the period of 2 months in terms of Section 85 has to be the date of Order-in-Original i.e. 18.09.2020 instead of the date of order of rejection of application praying for rectification of mistake i.e. 06.10.2020. 8. From the above appreciated facts of the present case the moot controversy in the present appeal ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund already made, the [Central Excise Officer] shall make an order specifying the sum payable by the assessee and the provisions of this Chapter shall apply accordingly. 9. Perusal of this provision makes it clear that after an ROM has been filed the order wherein the mistake has been alleged can be amended in any possible way, 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 date of the order of the said ROM application. 10. Though the learned DR has impressed upon the findings of the Commissioner (A) in para 8.3 of the order under challenge (as quoted above), but from the perusal of the copy of the ROM order dated 06.10.2020 as placed on record, there are two mistakes alleged qua the order dated 22.11.2019, as follows: i) While confirming the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 has to be excluded while calculating the stipulated period for filing appeal against the order which was objected. 14. In view of the entire above discussion the aforesaid framed question of adjudication is decided as follows: That the relevant date for a period of two months to reckon in terms of section 85 of the Finance Act 1994 is the date when the original adjudicating authority after deciding the application praying for rectification of mistake in the original order passed by the said Original Adjudication order and communicated the same to the said applicant. 15. In view of the above adjudication since the relevant dated is held to be 06.10.2020 when the order about ROM application was communicated to the appellant. Admittedly the appeal before the Commissioner (Appeals) was filed on 07.12.2020, it becomes clear that the appeal was filed within the period of two months required to be calculated for filing the appeal before Commissioner (Appeals) (date of order has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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