ORDER
S.S. Kang, Vice-President
1. Heard both sides. Revenue filed this application for rectification of mistake. The contention is that it was mentioned that the issue is not settled by the Hon’ble Supreme Court whereas in fact it should be “the issue is settled now by Hon’ble Supreme Court. In these circumstances “Not” should be read as “Now”.
2. Another contention of the revenue is that the issue involved in this case is not covered by the decision of the Hon’ble Supreme Court in the case of L.H. Sugar Factories Ltd. reported in 2006 (3) S.T.R. 715 : 2005(187) E.L.T. 5. The contention is that in the case of L.H. Sugar Factories Ltd., the demand was under Section 73 of the Finance Act whereas in the present case, the demand is under Section 68(1) of the Finance Act. The contention is that there is a mistake apparent on record in the final order.
3. The contention of the assessee is that no demand under Section 68 can be made in absence of any notice under Section 73. In the present case as there is no notice under Section 73 of the Finance Act, therefore, the demand under Section 68 is not sustainable. The assessee relied upon the decision of the Tribunal in the case of Diamond Cables Ltd. v. CCE, Vadodara . In this case, the demand of Service tax was set aside on the ground that notice was not issued under Section 73 of the Finance Act. In the present case also, there is no notice under Section 73, therefore, I find no infirmity in the impugned order. Demand is set aside. ROM is rejected.
(Dictated and pronounced in open Court).