ORDER
S.L. Peeran, Member (J)
1. This Revenue’s appeal is filed against the Order-in-Appeal No. 248/2005-CE dated 26.10.2005 by which the Commissioner (Appeals) has set aside the Order-in-Original No. 21/2005 dated 03.06.2005 passed by the Assistant Commissioner of Central Excise, ST & EOU Division, Mangalore. This Order-in-Original is a rectification order rectifying the earlier Order-in-Original No. 34/2003 dated 15.10.2003. By the Order-in-Original No 34/2003 dated 15.10.2003 confirming the service tax, the Assistant Commissioner has chosen to impose penalty. The Revenue was aggrieved with the said Order-in-Original. The provision of law is required that the Assistant Commissioner’s order can be reviewed by the Commissioner or an appeal can be filed before the Commissioner (Appeals). Both the remedies were not chosen by the Revenue, but they had filed an application for rectification of the Order-in-Original and seeking the Assistant Commissioner to review his order and to impose higher penalty on the assessee. The Assistant Commissioner without examining the provisions of Section 74 of the Finance Act, has reviewed his order and imposed higher penalty by Order-in-Original No. 21/2005 dated 03.06.2005. This was challenged by the assessee before the Commissioner (Appeals) and the Commissioner (Appeals) took note of the provisions of Section 74 of the Finance Act and held that the authority can only rectify the mistake apparent on the face of record and cannot review his order. This is under challenge.
2. Heard both the sides in the matter. The Apex court in the case of Commissioner of Central Excise, Calcutta v. A.S.C.U. Ltd. ] have clearly laid down the law pertaining to the rectification of mistake. The Apex Court has upheld the earlier judgments and held that mistake apparent on the face of the record must be an obvious and patent mistake and that mistake should be clerical, arithmetical and / or grammatical. In the present case, the Assistant Commissioner had chosen to impose lesser penalty. But the Revenue instead of filing the review petition or an appeal before the Commissioner (Appeals), had filed an application for rectification of this order before the same authority praying for enhancing the penalty which was done by Order-in-Original No. 21/2005 dated 03.06.2005 which had been challenged before the Commissioner (Appeals). The Commissioner (Appeals), in the light of the Apex Court judgments, has set aside the Order-in-
Original passed by the Assistant Commissioner enhancing the penalty subsequently on rectification application as not correct in law. He has not been empowered to enhance the penalty. The Commissioner (Appeal) is justified in setting aside the Order-in-Original as it is beyond the scope of power for rectification under the provisions of Section 74 of the Finance Act. The Commissioner’s (Appeals) order is proper and correct. There is no merit in the appeal and the same is rejected.
(Pronounced and dictated in the open court)