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Judgment
N.M. Jamdar, J.)Â
Rule. Rule made returnable forthwith. The respondents waive service. Taken up for final disposal.  Â
The Petitioner has challenged the order dated 4 September 2015, passed by Respondent No.2-Additional Commissioner of Central Excise &
Service Tax, Goa, to the extent of adjustment of the second installment of service tax.Â
The Petitioner is a proprietary concern, providing security services. The petitioner concerned belonged to Mrs. Shirlina Filomena Vaz e
Fernandes, who was looking after the establishment. She suffered from cancer and subsequently, passed away on 18 July 2017. A show cause
notice dated 27 June 2013 was served on the Petitioner in respect of the service tax dues. The Petitioner responded to the notice and further
proceedings ensued.Â
Detailed facts are not necessary as the scope is limited in view of the submissions of the Petitioner. Mr. Ferreira, the learned Counsel for the
Petitioner submitted that the deposit of ₹ 1120101/made by the Petitioner was wrongly referred in the record of the Authorities as ₹ 120101/-, and it
is because of a typographical error in the record of the Respondents, the further liabilities have arisen for the Petitioner.
A reply affidavit has been filed by the Assistant Commissioner, wherein a preliminary objection has been taken by the Respondent that the
Petitioner has a remedy under Section 74 of the Finance Act, 1994 wherein the Central Excise Officer is empowered to rectify a mistake in the
order. The preliminary objection taken reads thus :
“II. The Revenue submit that the petition is not maintainable as there is an alternate remedy available under the Finance Act, 1994 which the
petitioner has not availed of. As per section 74 the Finance Act, 1994 the petitioner's grievances can be redressed by filing an application for
rectification within 2 years of the passing of the order and in the alternative the petitioner could have filed an appeal before the Commissioner of
Central Excise (Appeals) in terms of section 85 of the Finance Act, 1994.â€
This has been reiterated by Ms. Dessai, learned Standing Counsel for the Respondents.
Mr. Ferreira submits that the Petitioner, in fact, had sought such a rectification within the period of two years as stipulated, on 20 August 2016.Â
The learned Counsel has relied upon a the letter of 20 August 2016 which is annexed at Exhibit ""F"" to the Petition.Â
We have gone through the document dated 20 August 2016. In the second para of the document, the Petitioner had called upon the Authorities to
verify the office record and rectify the error. Though it is the contention of Ms. Dessai that this document is more of a representation than an
application, we cannot overlook the fact that the proprietor of the firm, a lady was suffering from cancer when she made the representation. Â
Further more, Section 74 does not contemplate any particular format as such, empowering the Central Excise to rectify the mistake on his own and, if
any mistake is brought to his notice by the Assessee. We are informed by Mr. Ferreira that this representation/rectification application, dated 20
August 2016 has not yet been decided.Â
That being the position, and in view of the preliminary objection raised by the Respondents, the Petition can be disposed of by directing the
Respondent-Authority to decide the representation dated 20 August 2016. The Officer concerned, will also go through the copy of the Petition
wherein exact nature of the rectification has been emphasized by the Petitioner. The concerned Authority will decide the application/representation
of the Petitioner dated 26 August 2018 within a period of eight weeks from today, in accordance with law. The concerned Authority will also look
into the Memo of the Petition wherein details of the clarification have been explained
Rule made absolute in the above terms. No costs.   Â