TaxTMI 
TaxTMI 
2021 (3) TMI 187
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....assed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for brevity, the Tribunal) in a miscellaneous petition filed by the petitioner in Mis. Order No.100/2004 dated 05.3.2004. 3. The petitioner is a public limited company, which had established 100% export oriented unit in an electronic software technology park for manufacture of several products including compact disc read only memory (CDROMs). The issue before the Tribunal was as to whether the product manufactured by the petitioner would be a computer software. 4. The Tribunal, by order dated 11.3.2003, referred to the technical opinion given by the senior professors from the Indian Institute of Technology, Madras and other institutions and in par....
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....ed under Sub-Section (2) of Section 129B of the Act. The Judicial Member of the Tribunal held that there had been a mistake apparent from the records and that if the mistake was not rectified, the very purpose of remanding the matter to the Authority would be lost and if the observations were allowed to stand, it would be fatal to the order of assessment. The Technical Member proceeded on the technicalities of the matter and held that the observations contained in the original order of the Tribunal were justified. On account of the difference in the opinion, the matter stood referred to a third party, who concurred with the Technical Member and ultimately, the miscellaneous petition stood rejected. This order is impugned in this writ petiti....
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....vision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault, a misunderstanding, a misconception. "Apparent' means visible; capable of being seen; easily seen; obvious; plain. A mistake which can be rectified under Section 129B(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in the provision makes it clear that only amendment to the order passed under Section 129B(1) is permissible where it is brought to the notice of the Tribunal that there is a mistake apparent from the record. In our view amendment of an order does not mean obliteration of the order or....
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....bunals under Section 129B(2) to rectify "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of "an error apparent on the face of the record". (see T.S.Balaram, ITO v. Volkart Brothers [(1971) 82 ITR 50 (SC)]. Mistake is an ordinary word, but in taxation laws, it has a specific and special significance. It is not an arithmetical or clerical error alone that comes within its purview. It comprehends errors which, after a judicious probe into the record from which it is supposed to emanate, are discerned. The word "mistake" is inherently indefinite in scope, as what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line i....
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....ectify "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of "an error apparent on the face of the record". Further, it was pointed out that mistake is an ordinary word, but in taxation laws, it has a specific and special significance, that it is not an arithmetical or clerical error alone that comes within its purview and that it comprehends errors which,after a judicious probe into the record from which it is supposed to emanate, are discerned. It was also held that in order to attract the power to rectify under Section 129B(2) of the Act, it is not sufficient if there is merely a mistake in the order sought to be rectified; and the mistake to be rectified m....
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....f the view that the reasons assigned by the Judicial Member at the first instance to allow the miscellaneous petition was the correct approach. We say so because the Tribunal, in the earlier part of the order, held that the issue to be decided is highly technical in nature. Certain materials were placed when the Tribunal was hearing the matter for the first time and therefore, the Tribunal opined that adequate opportunity was not granted to the assessee and thought fit to remand the matter for de novo consideration. Having arrived at such a conclusion, the Tribunal ought not to have ventured to give a finding on the very same issue, which the Tribunal though fit to remand to the Adjudicating Authority for a fresh consideration. Therefore, ....