2008 (8) TMI 189

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.... by Final Order No. 1654/07-SM (BR) dated 14-11-2007, the Tribunal reduced the penalty from Rs. 1,57,896.00 to Rs. 50,000.00. The finding of the Tribunal are as under:- "3. Admittedly, the appellant have shown different values in their Income Tax Return and bank statement as compared to what has been reflected in the return filed with the department. The appellants have contended that on account of new levy, they were not aware of various rules and as such the less value was adopted for the purpose of tax. By giving the benefit of doubt on the above point and by taking note of the fact that entire amount of duty was immediately deposited by the appellant along with interest amounting to Rs. 43,921/-, I reduce the penalty from Rs. 1,57,89....

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....ginal show cause notice. The penalty is not warranted. He contended that the Tribunal may rectify the mistake in the Order dated 2-4-2008 in so far as the penalty is liable to be set aside. 7. Ld. DR on behalf of the Revenue strongly opposed this application. He submits that the application for rectification of mistake under Section 35C(2) of the Central Excise Act, 1944 is maintainable against the Final Order passed under sub-section (1) of Section 35(C) of the Act. He submits that Order dated 2-4-2008 was passed under Section 35C(2) of the Act and not under Section 35C(1) of the Act and, therefore, this application is not maintainable. He further submits that the Tribunal reduced the penalty after considering the facts, that the Applic....

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....ion of mistake of Order dated 2-4-2008 passed under Section 35(C)(2) of the Act is not maintainable. There is no provision for rectification of mistake of an Order under Section 35C(2) of the Act. 9. In addition to that, it is observed that on perusal of the earlier application for rectification of mistake against Final Order dated 14-11-2007, it was contended by the Applicant that the demand of tax is totally barred by limitation as there was no allegation of suppression of facts with intent to evade payment of duty. It was also contended that their submission in respect of time bar demand taking into account the corrigendum to show cause notice dated 11-5-2006 was escaped from the notice of the Tribunal while passing the Final Order da....