Custom, Excise & Service Tax Tribunal
M/S. Airport Authority Of India vs Cst, Delhi on 28 August, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066. BENCH-DB Date of Hearing: 28.08.2014 ST/215/2008-CU[DB] [Arising out of Order-in-Original No. 02/VKG/CST/2008 dated 08.01.2008 passed by the Commissioner (Appeals), Central Excise, Delhi] For Approval & Signature : Honble Mr. Justice G. Raghuram, President Honble Mr. R.K. Singh, Member (Technical) 1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy of the order? 4. Whether order is to be circulated to the Department Authorities? M/s. Airport Authority of India Appellant Vs. CST, Delhi Respondent
Present for the Appellant : Shri A.K. Batra, CA with : Shri Varun, Advocate Present for the Respondent : Shri Amresh Jain, DR FINAL ORDER NO. 53939/2014 PER: R.K. Singh The appellants have filed this appeal against Order-in-Original No. 02/VKJ/CST/2008 dated 08.01.2008 passed under Section 74 of Finance Act 1994 on the application for rectification of mistake apparent in the Order-in-Original No. 42/RK/2006 dated 15.12.2006 dated 15.12.2006. In the said order dated 08.01.2008 the commissioner came the clear finding that there was no mistake apparent from record in relation to adjudication order No. 42/RK/2006 dated 15.12.2006 and therefore rejected the application.
2. The appellants are before CESTAT against the said rejection of their application for rectification of mistake. They have essentially contended as under:
(i) The Commissioner did take into account the returns subsequently filed by them before the assistant commissioner and no opportunity for hearing was given to them before passing the impugned order.
(ii) The figures provided by the appellants were not final figures.
3. We have considered the submissions of the appellants. As regards the impugned order having been passed without providing opportunity to the appellants for being heard, it is seen that sub-Section 4 of Section 74 ibid reads as under:
(4) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this section unless the Central Excise officer concerned has given notice to the assessee of his intention so to do and has allowed the assessee a reasonable opportunity of being heard. Thus its evident that the appellants were required to be given an opportunity for being heard if the impugned order had the effect of enhancing the assessment or reducing the refund or otherwise increasing the liability on the assessee. None of these consequences followed as a result of the impugned order and therefore the appellants contention that the order is not sustainable because they were not given an opportunity for being heard is obviously untenable.
4. The appellants have also argued that the order dated 15.12.2006 was passed on the basis of wrong figures and therefore the case falls within an ambit of mistake apparent from record. In this regard it is to mention that the expression used in Section 74 ibid is with a view to rectifying any mistake apparent from the record. Thus, it has to be clearly understood that the adjudicating authority while adjudicating a case goes only by case records pertaining to that adjudication and therefore mistake apparent from the records has to be with reference to the records which were related to the case and presented to the adjudicating authority for the purpose of adjudication. The appellants had admitted that the adjudication was done on the basis of the appellants submissions including the figures submitted by them and as far as the adjudication order is concerned there is no mistake therein which is apparent from the records pertaining to the said adjudication because that order is admittedly based on the figures and submissions given by the appellants themselves. The subsequent ER-1 returns submitted to the field formations did not constitute part of the records before the adjudicating authority. In the case of Assistant Income Tax Rajkot vs. Saurashtra Kutch Stock Exchange Ltd. 2010 (80) STR 84 (SC) the Supreme Court (in para-37) has held as under:
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 t 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 and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record.
5. The appellants have nowhere argued that the adjudication order is not based on the correct appreciation of the records relating to that adjudication presented before the adjudicating authority. That being the case it is certainly not a case of mistake apparent from the record and therefore there is no infirmity in the impugned order dated 08.01.2008 and the same is legal and proper. The appeal is thus not sustainable and hence the same is dismissed.
(Justice G. Raghuram) President (R.K. Singh) Technical Member Neha 4