Rectification of mistake apparent on record

[Vasudev Mehta]

Can commissioner (appeals) under service tax rectify its own order if there is mistake appearent on record?

[KASTURI SETHI]

Pl. elaborate your query.  Is it a typo error ?   Write in detail about the nature of error.

[Vasudev Mehta]

Dear Sir,

There was delay of 3 days after 2 months for which the appellant had filed condonation application. However, Commissioner (Appeals) under Service Tax passed an order that no condonation application was filed and dismissed the appeal. There was a mistake of fact

[KASTURI SETHI]

           This will tantamount to review its own order which is not permitted in Service Tax law. Only Supreme Court can review its own order. No other Court or Appellate Authority can review its own order.

         If you have solid proof of filing application for condonation of delay and you think your application for condonation of  delay was ignored, you must file  appeal with Tribunal. There is a case law on this very issue in your favour. Such case law can be easily traced out.

[Vasudev Mehta]

Dear Sir,

The Client had bonfidedly filed rectification application against the same for which the Commissioner (Appeals) provided hearing however since no order was passed by Commissioner (Appeals). The Client approached CESTAT with a delay of 25 days against the original order of Commissioner (Appeals). Will CESTAT condone the delay?

[KASTURI SETHI]

Yes, CESTAT has vast powers to condone the delay but you must have solid cause of delay with documentary evidence. 

[Vasudev Mehta]

Dear Sir,

Are there any case laws under service tax that bonafidely pursuing rectification application before Commissioner (Appeals) is sufficient cause for condoning delay?

[KASTURI SETHI]

It will take time to trace out. However, Madras High Court judgement is on the same issue but it pertains to GST regime. TMI Issue ID 2024 (12) TMI 140 - MADRAS HIGH COURT.

This may help you. See rationale in the judgement. You are not at fault at all. Hopefully delay is condonable. 

If I come by any case law pertaining to the Service Tax law, that will be posted  here immediately.

[KASTURI SETHI]

You can also take shelter of the following :-

(i) Limitation Act

(ii) General Clauses Act

(iii) Principles of natural justice

(iv) Fundamental Rights for equal justice

AI Summary

Rectification of mistake apparent on record: appellate authority cannot review its own order; tribunal may condone delay.
Whether Commissioner (Appeals) can correct an apparent mistake that records non-filing of a condonation application; such correction would amount to a prohibited self-review, so the appropriate course is to appeal to the tribunal. The tribunal has wide powers to condone delay where the appellant establishes a bonafide cause with evidence; pursuit of rectification proceedings before the appellate authority can support a claim for condonation, with Limitation Act principles, General Clauses Act reasoning, and natural justice invoked as supporting grounds.