TaxTMI 
TaxTMI 
TaxTMI 
2026 (2) TMI 432
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.... 4.5.2 From the above findings recorded in the impugned order it is evident that the demand is made in respect of two specific work order which were for construction of RCC Bridge over the Baishaha Nala in the mining area of SECL and was not in respect of the approach road to Khairakha UG Mine Project of Sohagpur District. The claim made by the appellant that the demand has been made in respect of this road which is a public road cannot be sustained. Impugned order specifically records the details of the work order for construction of approach road and also observes that no demand has been made in respect of said work order in the show cause notice. We do not find any merits in the submissions made by the appellant in this regard that construction of roads for use of general public is exempted from the payment of service tax, as no demand has been made in respect of any such activity undertaken by the appellant. Impugned order has examined the work order specifically to conclude that these works involved transfer of property in the goods and hence qualify as "work contracts" as defined under Finance Act, 1994. Further the work order specifically provides as observed from clau....
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....lement when the duty is nil." and Amadalavalasa Cooperative Sugars Ltd. 2007 (1) TMI 432-CESTATE Bangalore which hold that "Where the contract price is inclusive of duty payable there cannot be unjust enrichment even if the duty payable is either reduced or nil". Further, nowhere the revenue was able to prove at any stage that amount of Service Tax was received by the Appellant. (vii) The relevant extract on page 36 of your Honour's Order dated 1" August, 2025 as highlighted below is subjected for consideration in this application as there is a mistake apparent on record: - 4.5.3 The work order from the M/s MPPCGL Sarni is also not in respect of construction of "Dam" as claimed by the appellant but is in respect of construction ash bund/ ash dyke for the disposal of fly ash generated in the thermal power plant of the service recipient. Appellant counsel to a specific query raised by the bench during the course of argument to effect that dams are built over river or streams, then on which stream this dam claimed to have been constructed by the appellant was built, counsel failed to provide any satisfactory reply, he only referred to certain pictures which were ....
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....ence. The said fact is also clear from the Appeal Order dated 1st August, 2025 itself and thus is a mistake apparent on record." 2.1 We have heard Shri Mukul Gupta learned Counsel appearing for the applicant and Shri Aejaz Ahmad learned Authorised Representative appearing for the revenue. 2.2 Arguing for the applicant learned Counsel submits that in their application certain errors have crept in the order of the Tribunal. These errors can be said to be on three grounds:- i. Penalty under Section 78 has been modified in respect of the demand dropped. ii. Tribunal has failed to express their submissions in proper prospective while disallowing the demand in respect of the construction of RCC bridge over the Baishaha Nala in the mining area of SECL this approach was brought on the public road and hence was exempt from payment of service tax. iii. The demand in respect of Ash Bund has been upheld contrary to the submissions that it is dam which is exempt from payment of service tax. He requested that the rectification application be allowed. 2.3 Learned Authorized Representative reiterates the findings recorded in the Final Order and submitted that....
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....lusion to the effect that the assessee company and the buyer of the goods were not inter-connected companies. Different conclusions were arrived at by the CESTAT because it reappreciated the evidence in relation to common directors among the companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. 17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a differe....
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.... much on record and thereby it committed a mistake which was subsequently rectified by considering and appreciating the evidence which had not been considered earlier. As stated hereinabove, in the instant case, the position is absolutely different. 21. This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO v. Ashok Textiles, 41 ITR 732 that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. 22. For the aforestated reasons, we are of the view that the CESTAT exceeded its powers and it tried to re-appreciate the evidence and it reconsidered its legal vie....
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....ng the case which is not within the scope of rectification as per section 35 C (2) of the Central Excise Act, 1944 read Section 83 of the Finance Act, 1994. In case of Mahalaxmi Cable Industries [2010-TIOL-1396-CESTAT-Del] after considering the judicial precedence's, Delhi Bench observed that scope of mistake apparent from record under Section 35C (2) of the Central Excise Act, 1944 is very limited. What that can be rectified is to be appreciable by a cursory glance to the order and should be apparent there from. Rectifiable mistake must be patent mistake and discovery thereof is not from elaborate argument. The power to rectify the mistake does not cover cases where a revision or review of the order is intended. We do not find any merits in this ground also. 3.5 We also not that the last point which applicant has tried to argue is in respect of the demand confirmed in respect of RCC Bridge over the Baishaha Nala in the mining area of SECL, we do not find any merit in the submission by which I cannot be said that an error crept in our findings. Our findings are based on the available documents on record including work order signed between applicant and service recipient. Para 9 ....
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....late Tribunal can rectify any mistake apparent from record by amending the order passed by it. For invoking the jurisdiction under this section it has to be shown that what is being rectified is a mistake apparent from record. The phrase "mistake apparent from record" has been considered by the Supreme Court in case of Assistant Commissioner Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange [2008 (230) E.L.T. 385 (SC)] "37. In our judgment, therefore, a patent, manifest and self- evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest an....
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.... properly instructed under the relevant law could have come to the same decision and conclusion. In the current factual matrix, having noted the evidence and material before the Tribunal, the final conclusion arrived at, it cannot be said, that Tribunal's conclusion was based upon no evidence to support or was rationally not possible or entirely unreasonable. The conclusion is also not contradictory." Hon'ble Supreme Court has in its decision in case of JCIT SURAT VS. Saheli Leasing & Industries Ltd. [2010 (253) ELT 705 (SC)]- "Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all previous judgments have been considered, should be mentioned. While writing judgment, psychology of the reader has also to be borne in mind, for the perception on that score is imperative." 8. Further if the finding of fact arrived by the Tribunal is not acceptable then the sa....
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.... though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A reveiw is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares on in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. No questions of fact were involved in the decision of the High Court in T.R. Cs 75 to 77 of 1956. The entire controversy turned on the proper interpretation of R. 18 (1) of the Turnover and Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of Feb., 1956; nor could it be doubted or disputed that these were substantial questions of law. In the circumstances therefore, the submission of the app....
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....applications related to factual and legal aspect which require reappraisal of evidence and this was not permissible and was not within the scope of Section 35C(2) of the Central Excise Act. Therefore, in my view, the order dated 25.01.2000 read with order dated 27.09.1999 cannot be quashed." 10. Hon'ble Supreme Court has in case of Commissioner Vs RDC Concrete (India) Pvt Ltd 2011 (270) ELT 625 (SC)] held as follows: "10. ..... 16. ....." 12.0 In case of Commissioner Of Central Excise Vs. Steelco Gujarat Ltd.[ 2003 (163) ELT 403 SC] Hon'ble Supreme Court held- "8. Although the ground for rectification, namely, an error on the face of the record may be common to a power for review, the nature of the power to be exercised in the two cases is distinct. The power of review is not limited to rectification and is wider than the power conferred under Section 35C(2). We are unable to hold that the error was a manifest one which could admit of no dispute. It was a debatable point which was raised, and the conclusion of the Tribunal in the impugned order clearly shows that it has considered the question from the point of view of the sufficiency of....