2016 (44) STR 236 (Mad.) Sree Daksha Property 16 Developers Pvt. Ltd. vs. CCE, Coimbatore

Non-consideration of submissions made by assessee while
passing adjudication order, is an error apparent from record.

Facts

During
adjudication, petitioner asked for deduction of land value for determining
value of services and provided relevant information for calculation.
Adjudication got completed without considering such information and it was
stated that no corroborating and convincing evidences were produced.
Consequently, application for rectification of mistake apparent from record was
filed. The same was rejected by the department on the ground that this was not
an error apparent from record and it was Held that there cannot be a long drawn
process of reasoning on points if there are two opinions, relying on the
hon’ble Supreme Court’s decision in Sant
Lal Gupta vs. Modern Co-op. Group Housing Society 2010 (262) ELT 6 (SC).

Held

It
was Held that the power to rectify a mistake u/s. 74 of Finance  Act, 1994 cannot be put under a straight
jacket formula and each case has to be tested on its own Facts. Adjudication
order did not discuss the relevance or irrelevance of records produced by
petitioner and did not examine records. This was undoubtedly an error apparent
from records. Further,  opportunity of
being heard was not granted to the petitioner. Accordingly, the writ petition
was allowed.