TaxTMI 
TaxTMI 
2024 (10) TMI 731
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the issue which falls for our consideration relates to the Rectification of Mistake application, hence the facts of the case on merit are not required to be dwelt upon in extenso. It appears that there was some error apparent on record in the final order dated 18.01.2018 where there was contradiction in paragraph nos. 6 and 7 and as a result, the Revenue preferred an application for rectification of mistake. The said application was considered vide order dated 05.04.2019, where the Bench noticing the contradiction restored the appeal to its original number and directed it to be listed for final hearing. Thereafter, the appeal was listed on several occasions but time was sought by the respondent on one pretext or the other. Though, last op....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Revenue, is dismissed." 3. From the above, it appears that the order of the Commissioner relying on the NIDB data has not been found to be maintainable and, therefore, the appeal filed by the Revenue was required to be allowed. Hence, we modify the order to that extent that the appeal filed by the Revenue is allowed and para 7 of the Final Order dated 18.01.2018 shall read as under: 7. In the result, appeal filed by the Revenue, is allowed". 3. Learned Counsel for the respondent thereafter filed a miscellaneous application on 08.04.2024 clarifying his absence as under: "7. That the counsel for the respondent though reached the Tribunal on 18.03.2024 however, before the matter could be taken up, had to leave for home due to some ur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ss than the monetary limit prescribed, the appeal is no longer maintainable and ought to have been withdrawn by the Revenue. Learned counsel for the respondent referred to the decision of the Supreme Court in JK Export and Import House vs. Commissioner of Customs (Prev) [Review Petition (C) No. 33/2019] and hence prayed for recalling of the order dated 18.03.2024 on the issue of monetary limit to pursue the appeal. 5. We have heard both sides and perused the records of the case. 6. The application for recalling of the order dated 18.03.2024 has been filed by the respondent on a wrong assumption that the same has been passed on the basis of the application filed by the Revenue i.e. C/ROM/50630/2018 seeking rectification of mistake in the F....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he learned counsel for the respondent completely missed this part of the order and mis-construed that the appeal was listed for fresh hearing. The entire order has to be read in entirety and therefore the content of para 5 & 6 of the order restoring the appeal and listing it for hearing has to be read with reference to para-4 as the order was being passed on an ROM application. 8. When the appeal was listed on 18.03.2024, after hearing the learned Authorised Representative for the Revenue, the final order was passed on the appeal considering that there was a contradiction in the earlier final order dated 18.01.2018. Having upheld the contentions of the Revenue, the logical conclusion would have been that the appeal filed by the Revenue was....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a debatable point could not be said to be rectification of mistake, inter alia apparent on record. The latest decision of the Bombay High Court in Board of Control For Cricket In India (BCCI) vs. Commissioner of Service Tax,-1, Mumbai [2023(79) GSTL 379 (Bom.)], where the learned Division Bench following the aforesaid decisions of the Supreme Court upheld the order of the Tribunal rejecting the application to rectify the mistake observing that section 35 C(2) read with Section 83 of the Finance Act, 1994, (pari materia Section 129B (2) of the Customs Act, 1962) empowers the Tribunal to rectify the order only on mistakes which are "apparent from the record". 10. The Larger Bench of the Tribunal in the case of Dinkar Khindria v. Collector o....