Error apparent on record -rectification applications under sec 74 of Finance Act,1994.

As all are aware,the section 74 of FA,1994 is a self contained provision envisaged as a simplified method to get the errors in any orders issued under the said Act.This provision can be invoked alike by department as well as clients.However,in practice the applications filed as per sec 74 by the clients are not entertained by the quasi judicial authorities.

In Sept 2014 ,the  condition of pre deposit  7.5/10% of tax involved was made mandatory.A large number of appeals filed during the interragnum period without the pre deposit  was dismissed ex parte,even without even giving a notice or hearing.Hundreds of appeals were disposed by this gillatin method in one stroke.Some of the Appeal Commissioners allowed in their orders on application filed as per sec 74.The appeals were restored after making the pre deposit within a notified period.The clients were therefore able to get their appeals decided on merits.

Strangely,some Commissioner(Appeals) have never bothered to attend to or reply the applications filed under section 74 against such ex parte orders.Even applications filed enclosing the mandatory  pre deposit Challans remain in attended.

This has resulted in an anomalous situation as the clients are unable to approach the CESTAT now,as the time limit for filing appeal against the ex parte orders have lapsed.Even the scheme of SVLDRS,2019 could not be availed in such cases.

It is hightime that the buerocratic indifference by the Departmental authorities in such matters are put to rest.Authorities without basic respect to rule of law like principles of natural justice,judicial descipline to abide by settled case laws etc are the main contributors to the large number of appeals in CESTAT benches.

Even the departmental mechanism for review of orders passed has been made a farce with Boards instructions that only orders against revenue need be subjected to review!!

If the basic violations of exparte orders without hearing are ordered to be rectified in the Review orders,it would be an example of assessee friendly approach for ease of doing business.

A stock taking of pending applications filed as per sec 74 before various quasi judicial authorities is the need of the hour  It would go a long way in the closure of pre GST disputes ,Eve though after almost 4 years !!

Will the Board come out with suitable  instructions to dispose such ROM Applications  filed under sec 74 strictly adhering to afford a hearing etc.

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Unnikrishnan V.

Superintendent Retd,Cochin.

[email protected]