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2018 (11) TMI 622 - AT - Service Tax


Issues:
Rectification of order based on alleged error apparent on record in the application of case law and retrospective effect of amendment to proviso to Section 35F of Finance Act, 1944.

Analysis:
1. The appellant sought rectification of the final order dated 26th May, 2017, claiming that the Tribunal erred in not invoking the extended period of limitation. Referring to the case law of Thirumalai Chemicals Ltd. vs. Union of India, the appellant argued that the amendment to the proviso to Section 35F of the Finance Act, 1944, should not have retrospective effect as the show cause notices were issued before the amendment came into effect post 10th May, 2013. The appellant requested the demand to be set aside based on this alleged error.

2. The Departmental Representative contended that there was no error apparent in the impugned orders. While acknowledging the reliance on the Thirumalai Chemicals Ltd. case, it was argued that the order clearly explained the reasons for giving retrospective effect to the amendments, deeming them procedural in nature. The Departmental Representative emphasized that the applications should be dismissed.

3. The Tribunal, after hearing both sides, emphasized that rectification of an order is only permissible in case of a typographical, arithmetical, or calculation error, or if an important fact is skipped or a settled legal principle is ignored. The Tribunal clarified that a difference of opinion between the adjudicating authority and the aggrieved party does not constitute an error apparent on record. Referring to the Sant Lal Gupta case, the Tribunal highlighted that a review of an appeal is not permissible through a rectification application, as it amounts to rehearing the case, which is not allowed at this stage.

4. Consequently, the Tribunal held that the Rectification of Mistake (ROM) application lacked merit and dismissed it. The Tribunal emphasized that the settled law in the Thirumalai Chemicals Ltd. case was properly applied in the impugned orders, particularly in paragraph 11, where it was clarified that the amendment to the proviso to Section 73 post May 2013 did not form the basis for the service tax demand. The Tribunal reasoned that the amendment was procedural and did not adversely affect the vested rights of the party, allowing for retrospective effect.

5. In conclusion, the Tribunal dismissed the ROM application, upholding its original order and reasoning. The Tribunal's decision was based on the understanding that the amendment in question was procedural and did not impact the party's vested rights adversely, thus justifying the retrospective effect given to it.

 

 

 

 

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