The Rectification of Mistake (ROM) Application is admissible when it is apparent that one of the grounds of appeal was not considered before passing the final order.

PJ/Case Laws/2012-13/1309

CASE:NIHON TRADING COMPANY V/S. COMMISSIONER OF SERVICE TAX, BANGALORE

CITATION:2012-TIOL-1486-CESTAT-BANG

BRIEF FACTS:This application for ROM has been filed by the appellant stating that there is a mistake apparent on the face of final order passed by the Tribunal. The mistake pointed out by the appellant is that the secondground raised in the appeal was not considered while passing the order.

APPELLANT’S CONTENTION:The appellant submits that the second ground which reads as “The review proceeding was taken at the time the statutory appeal was pending before the Commissioner (Appeals) which is against the Rule. This will cut at the root of the case of the review authority.” was not considered. The learned counsel for the appellant also submitted that the issue raised by the Commissioner as revisionary authority in the show cause notice issued by him was not different from the issue raised by the assessee before the Commissioner (Appeals) in the appeal filed against the order in original. The issue being the same, there is no warrant for a revision under section 84.

RESPONDENT’S CONTENTION:The respondent contends that it was not necessary for them to consider the said ground. It was also submitted that the ground is extraneous to the issue considered by them in the final order.

REASONING OF JUDGEMENT:We have considered the submissions on both the sides. It is not in dispute that the above order was not considered in the final order passed by this bench. The claim of the learned counsel needs to be examined on merits. But, as the learned counsel has not been able to produce a copy of Memorandum of Appeal filed with the Commissioner (Appeals), we are not in a position to address the issue at this moment. In any case, the controversy arises out of non consideration of ground No. 2 in the final order passed. As it is not in dispute that the said ground was not considered in the final order, the mistake can be said to be apparent on the face of the record and consequently, appropriate correction is warranted. In this scenario, we are inclined to recall the final order and hence the present application is allowed to the extent of recalling the final order.

DECISION:The ROM Application is allowed.

COMMENT:On analysing this case, it can be undoubtedly said that the provision of Rectification is a good provision that enables speedy disposal of matters when it is very much clear that there is mistake on the face of the record.

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PJ/Case Laws/2012-13/1309

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