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TMI Blog2023 (11) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... after it came to know of the order dated 11.08.2015 passed by the Principal Commissioner, immediately moved an application for rectification of mistake bringing to the notice of the Principal Commissioner the correct facts. Rectification of mistake - HELD THAT:- The application filed by the appellant for rectification of mistake should have been decided on merits and should not have been disposed of merely by stating that the Officer who had passed the order had, in the meantime, been transferred even before the filing of the application. The power given under section 74(1) of the Finance Act cannot be rendered infructuous if the Officer who passed the order is transferred. What has to be decided is whether there is a mistake apparent from the record. In a case where the Officer has not been transferred, of course it should be the same Officer who should decide the application, but in a case where the Officer has been transferred, the Officer who has been posted would have the jurisdiction to pass the order - It is, therefore, evident from the facts of the present case that an opportunity of personal hearing was denied to the appellant as even after adjourning the matter f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid service tax in respect of warehousing service and transport of goods by air service and had also correctly availed CENVAT credit. 4. A notice was sent to the appellant fixing 06.07.2015 as a date for hearing. According to the appellant a communication dated 06.07.2015 was submitted by the appellant with a prayer that sufficient time may be granted to submit the relevant documents and on this application the Principal Commissioner remarked; no notice. Adj. to 10.08.2015 5. According to the appellant the matter was not shown in the roster dated 10.08.2015 of the Principal Commissioner, but the appellant submitted a reply on 10.08.2015 and made a request for fixing another date for hearing. In that reply the appellant enclosed the certificate issued by the chartered accountant and other documents also. The appellant also claims to have submitted submissions on 21.08.2015. However, the appellant came to know that the Principal Commissioner had passed an ex-parte order on 11.08.2015 confirming the demand of service tax raised in the show cause notice. 6. The appellant thereafter filed an application for rectification of mistake under section 74 of the Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue that needs to be decided in the present appeal is as to whether the Principal Commissioner was justified in passing the ex-parte order on 11.08.2015. 12. According to the appellant, the applicant had submitted an application on 06.07.2015, which was the date fixed for personal hearing by the Principal Commissioner, seeking an adjournment so as to enable the appellant to file documents. The appellant contends that the Principal Commissioner made an endorsement on the said application adjourning the matter to 10.08.2015. This assertion by the appellant finds support from the fact that on 10.08.2015 the appellant submitted the relevant documents and also submitted further documents on 21.08.2015. In the application filed for rectification of mistake, the appellant has stated facts in detail. The relevant portions of the averments made in the application filed by the appellant are reproduced below: 9. The matter was accordingly adjourned to 06.07.2015 and the Assessee company in the meanwhile also made strenuous efforts in reconciling the such voluminous data/information pertaining such a long period of time and finding its staff sheer incapable to carry out the said mammo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessee Company were surprised to peruse the cause list of the Commissioner as the case of the Assessee Company was not mentioned in the roster of the hearing of the Commissioner for 10.08.2015. Even then the authorized representative of the Assessee company after obtaining the permission from the Commissioner met him to explain their case. The Commissioner was informed that there seems to be some anomaly and inadvertent error in the preparation of the roaster of the hearing for 10.08.2015 due to which the case of the Assessee Company was omitted to be mentioned therein. The Commissioner was also shown the letter of adjourned dated 06.07.2015 wherein the Ld. Commissioner had himself under his signature and in his own handwriting adjourned the matter from 06.07.2015 to 10.08.2015. The learned Commissioner observed the omission in his roaster and informed the authorized representative of the Assessee company that he shall himself look into the said omission in his roaster for hearing and intimate the Assessee company about the next date of hearing by a notice in writing. The authorized representative of the Assessee Company could not make their submission before the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N dated 24.04.2014 were fully reconciled and satisfied. It would not be an exaggeration to state that oral submissions were necessary to put life and breath into the defence adopted by the Assessee company by way of submitting the documents. 15. On 21.08.2015 when the authorized representative of the Assessee company met the learned Commissioner they raised a bona fide grievance that on 10.08.2015 they were told that the Assessee company would receive a notice of next date of hearing in writing from the commissionerate but as yet the Assessee company did not receive any such notice and further submitted that they were ready and willing to make the oral submissions which were necessary for their defence. Thunderbolt struck the authorized representative of the Assessee company when the learned Commissioner broke out the new to them that adjudication order pursuant to the SCN dated 24.04.2014 has already been passed. Where upon the authorized representative again submitted the learned commissionerate that the demand of service tax cannot be confirmed without following the principles of natural justice and fair play, without considering the documents filed in support of defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ology will go to prove that the party is avoiding proper reply to the Show Cause Notice there by creating further impression in the minds of the adjudicator that the party has more to hide and they are only making vague submissions without any supporting document only to delay adjudicating process. Since no opportunity has been availed by the party despite numerous such opportunities offered, I come to the conclusion that the party does not have anything substantial against the charges levied in the Show Cause Notice. Therefore, I proceed to adjudicate the matter based on available records. 15. A perusal of the aforesaid order passed by the Principal Commissioner would indicate that opportunity of personal hearing was granted to the appellant on 11.12.2014, 24.04.2015 and 11.02.2015 (should be 11.05.2015) and the last opportunity was provided on 15.06.2016. 16. In paragraph 8 of the application filed by the appellant for rectification of mistake, it is stated that on 11.05.2015 the matter was adjourned to 15.06.2015. On 15.06.2015 the matter could not be taken up as an application had been filed by the appellant seeking some more time and the hearing was adjourned to 06.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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