TaxTMI 
TaxTMI 
2022 (5) TMI 478
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....he proportionate penalties under Section 77 and 78 of the Finance Act, 1994. 2. The said proposal was confirmed by Order-in-Original No. 23/2019-20 dated 22.11.2019. The appeal was filed before Commissioner (Appeals) who has rejected the same as being filed beyond a period of three month (two months plus one condonable month), from the date of the aforesaid original order. Still being aggrieved, the appellant is before this Tribunal. 3. I have heard Mr. O.P. Agarwal, Advocate for the appellant and Mr. Mahesh Bharadwaj, Authorised Representative for the Department. 4. It is mentioned on behalf of the appellant that the original Adjudicating Authority had passed the ex-party order mentioning that despite four opportunities of personal hearing none appeared before him for the appellant. It was also recorded by the original Adjudicating Authority that no written defence submission was also provided by the service provider of the applicant. Learned Counsel has impressed upon the said mention was the error apparent on the record of the said order as a written detailed reply to impugned show cause notice was submitted by the appellant and the same was acknowledged to be received ....
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....parent on the face of that record, the applicant / present appellant had pointed out another apparent error in the said order vide the aforesaid application with respect to the merits of the case submitting that since the appellant was the individual operator he has wrongly been covered under Goods Transport Agency and the liability was wrongly being fixed. There is no denial to these submissions. 7. I observe that as far as merits of the case are concerned Commissioner (Appeals) has rather formed a prima facie opinion in favour of the appellant / service operator. Commissioner (Appeals) in Para 4.1 of the order under challenge has also observed as follows: "In para 9, it has been held that the appellant had not filed any reply to the show cause notice. It is not correct. The appellant had filed reply to the show cause notice vide their letter dated 26.07.2019 and the same has not been considered while passing the impugned order. Photocopy of the reply so filed and duly acknowledged is enclosed herewith." Despite the said observations, Commissioner (Appeals) in para 8.3 of the order under challenge had mentioned that no mistake was found in the original Adjudicating ....
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....here an amendment is made under this section, an order shall be passed in writing by the [Central Excise Officer] concerned. (6) Subject to the other provisions of this Chapter where any such amendment has the effect of reducing the liability of an assessee or increasing the refund, the [Central Excise Officer] shall make any refund which may be due to such assessee. (7) Where any such amendment has the effect of enhancing the liability of the assesse or reducing the refund already made, the [Central Excise Officer] shall make an order specifying the sum payable by the assessee and the provisions of this Chapter shall apply accordingly." 9. Perusal of this provision makes it clear that after an ROM has been filed the order wherein the mistake has been alleged can be amended in any possible way, as mentioned in the above provision, depending upon the facts of each case. This particular perusal is sufficient for me to hold that once an application for rectification of mistake has been adjudicated by the original adjudicating authority on the merits, the final order of original adjudicating authority irrespective that ROM was rejected or allowed, i.e. irrespective....
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.... 85 ibid." 13. Single Bench of this Tribunal also in the case of Omkar Engineers v Comm of Central Excise, Pune reported as 2017 (52) STR 72 (Tri-Mumbai) has held that once the application of section 74 gets rejected by the Additional Commissioner the order of Additional Commissioner becomes final on the rejection of the said application and thus the relevant date for computation of time period under Section 85 of Finance Act is the date of decision of ROM application and not the date of O-I-O. Even Hon'ble High Court of Madras in the case of Sree Daksha Property Developers Pvt. Ltd. v CCE Coimbatore reported as 2016 (44) STR 236 (Mad.) has held that the period of adjudication about the objection has to be excluded while calculating the stipulated period for filing appeal against the order which was objected. 14. In view of the entire above discussion the aforesaid framed question of adjudication is decided as follows: That the relevant date for a period of two months to reckon in terms of section 85 of the Finance Act 1994 is the date when the original adjudicating authority after deciding the application praying for rectification of mistake in the original order passed b....