Subsequent returns submitted do not constitute part of records placed before adjudicating authority - there is no mistake apparent on record
THE appellant is Airport Authority of India .
They are in appeal against an order dated 08.01.2008 passed by the Commissioner u/s 74 of the FA, 1994 rejecting their application for rectification of mistake apparent in the Order-in-Original dated 15.12.2006.
Before the CESTAT the appellant have essentially contended -
(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.
In the matter of the submission that the impugned order had been passed without providing opportunity to the appellants of being heard, the Bench adverted to sub-section 4 of Section 74 and observed 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. Inasmuch as since none of these consequences followed as a result of the impugned order, therefore, the appellant's contention that the order is not sustainable because they were not given an opportunity for being heard is obviously untenable, the Bench held.
On the second ground that the order dated 15.12.2006 was passed on the basis of wrong figures, the CESTAT observed that the expression used in Section 74 ibid is "with a view to rectifying any mistake apparent from the record"; 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. Noting that the appellants had admitted that the adjudication was done on the basis of the appellants' submissions including the figures submitted by them and the subsequent ER-1 returns submitted to the field formations did not constitute part of the records before the adjudicating authority, the Bench observed that it could not be termed as a case of mistake apparent from the record.
The CESTAT, therefore, concluded that there is no infirmity in the impugned order dated 08.01.2008 and the same is legal and proper.
The appeal was dismissed.