TaxTMI 
TaxTMI 
2015 (5) TMI 597
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....ellant. Appellant paid the service tax along with interest and thereafter it was proposed to impose penalty on the appellant by way of show cause notice and the penalty was imposed by order dated 14.07.2011. Against the said order the appellant filed the appeal before the Ld. Commissioner (A) on 24.06.2013. The Ld. Commissioner (A) dismissed the appeal on the ground that appeal has been filed beyond the period of limitation and he has not filed the appeal. Therefore, appeal was dismissed. Against the said order appellant is before me. 3. After receipt of the adjudication order the appellant did not file the appeal but on 18.06.2013 the appellant filed an application for rectification of mistake which was apparent on record. Under section....
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....09.2006 which works out to be 54 days whereas in the order it has been shows as 115 days. Therefore, there is a calculation error on record and same is required to be rectified under Section 14 of the Act. In these circumstances, he submits that matter be remanded back to the Adjudicating Authority for reconsideration of the claim. 5. On the other hand Ld. AR strongly opposes the contention of the Ld. Counsel and submits the appellant were given nine opportunities to present their case. Neither they filed reply to the show cause notice nor they appeared before the Adjudicating Authority and it was in the knowledge of the appellant itself by way of issuance of the show cause notice that number of days is 115 which is not in the knowledge ....
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....isions of this section, the [Central Excise Officer] concerned (a) may make an amendment under sub-section (1) of his own motion; or (b) shall make such amendment if any mistake is brought to his notice by the assessee or the [Commissioner] of Central Excise or the [Commissioner] of Central Excise (Appeals). (4) An amendment, which has the effect of enhancing [the liability of the assessee or reducing a refund], shall not be made under this section unless the [Central Excise Officer] concerned has given notice to the assessee of his intention so to do and has allowed the assessee a reasonable opportunity of being heard. (5) Where an amendment is made under this section, an order shall be passed in writing by the 8[Central Excise....
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....n purpose whether the penalty has been imposed by calculating 54 days or 115 days for appellant and thereafter to arrive at the correct amount of penalty imposable on the appellant. Further, I find that argument advanced by the Ld. AR that there are latches on the part of the appellant. The Finance Act itself provides time period of two years for filing of application of Rectification of Mistake and appellant has filed that application within time limit prescribed in the Act. Moreover, it was the duty of the Adjudicating Authority while adjudicating the case to calculate the actual number of days which apparently from the record appears have not been done. Therefore, matter requires reconsideration at the end of the Adjudicating Authority. ....
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....e assessees." 11. Therefore, I hold that as the appellant has filed the application under section 74 of the Act. In these circumstances, the Ld. Commissioner (A) could not have rejected the appeal as time bar. Therefore, the said order is set aside. Appeal is allowed. (Dictated and pronounced in the open court) ============= Document 1 ANNEXURE P-1 21 SERVICE TAX DIVISION: CHANDIGARII C. No. CE-20/NTC/SCN/HFCL/15/10 279 DATED:26/03/10 SHOW CAUSE NOTICE M/s HFCL Infotel Ltd. B-71, Phase VII. Mohali (here.nafter referred to as the assessee) were engaged in providing the Business Auxiliary Services and registered with the 06/ST/Telecom/STC/CHD/2000. 2 Department under Registration No D....