Appeal - rectification of mistakes - section 74

[Jignesh Shah]

One of our clients had received SCN from the Service Tax Department. He had submitted his reply to the same and the Addl Commissioner passed the OIO against the client. The client appealed against the same to the Commissioner Appeals. The Commissioner Appeals confirmed the demand. Then the client realised that some of the important points were missed out and he filed an appeal for Rectification of Mistakes u/s. 74 of the  Finance Act, 1994 to the Commissioner Appeals. The Commissioner Appeals after 2 months of filing the appeal returned the appeal stating - "...that the application for Rectification of Mistake under Section 74 of the  Finance Act, 1994, is to be submitted to the original adjucating authority as no such provision is prescribed under Section 74 to approach the appellate authority for the same...." My question is - - Is it as good as remand back? - Should our client approach the Addl. Commissioner with the Rectification of Mistake and then start from there? - Should he approach CESTAT only? / Simultaneously while submitting Rectification of Mistakes to the Addl Commissioner? - Anything else? I want your views of the forum on the same....

AI Summary

Rectification of mistakes: pursue tribunal appeal with delay condonation while filing rectification at the adjudicating authority.
A taxpayer sought rectification under Section 74 after a Service Tax demand was upheld on appeal; the Commissioner (Appeals) directed filing the rectification with the original adjudicating authority. Contributors advise that questions of law can be raised at any stage, that the Commissioner (Appeals) generally cannot rectify an order absent a true mistake, and that the taxpayer should pursue a tribunal appeal with delay condonation and stay while also filing rectification at the original authority to preserve remedies.