2011 (4) TMI 820 - AT - Service Tax

Appeal to High Court - Mistake apparent on records - determination of rate of service tax - benefit under notification no. 13/03-ST dated 20.06.2003 has been denied - Held that - The denial will have a direct impact on the rate of service tax payable by the appellants - Therefore, as per the provisions of section 35D(3)(a), the matter has to go before the Division Bench for consideration and disposal - Hence, the mistake apparent on records of the case, the said order is to be recalled and it is ordered accordingly - Consequently, the appeal is restored and the registry is directed to place the matter before the Division Bench for consideration and disposal.

Summary

Issues: Application for recalling the Tribunal's order and restoring the appeal based on the competence of the single member to decide the matter under section 35D(3)(a) of the Central Excise Act, 1944.

Analysis:
The judgment addresses the application for recalling the Tribunal's order and restoring the appeal, focusing on the issue of the competence of the single member to decide the matter under section 35D(3)(a) of the Central Excise Act, 1944. The appellant argued that the issue pertained to the determination of the rate of service tax payable, which falls beyond the competence of a single member. The records revealed that a similar issue for the earlier period had been referred to the Division Bench for consideration and disposal. The Tribunal's decision in the impugned order denied the benefit under notification no. 13/03-ST, impacting the rate of service tax payable by the appellants. The judgment highlighted the mistake apparent on the records, leading to the order's recall. Consequently, the appeal was restored, and the matter was directed to be placed before the Division Bench for consideration and disposal, to be tagged with another case involving the same appellant and similar issues.

This judgment underscores the importance of the proper application of legal provisions, specifically section 35D(3)(a) of the Central Excise Act, 1944, in determining the competence of the Tribunal member to decide certain matters. It emphasizes the need for consistency in handling similar issues and the significance of ensuring that decisions align with the applicable laws and regulations. By recalling the order and restoring the appeal, the Tribunal demonstrated a commitment to upholding procedural fairness and ensuring that matters are appropriately considered and disposed of by the competent authority, in this case, the Division Bench. The judgment serves as a reminder of the procedural safeguards in place to safeguard the rights of appellants and ensure that legal matters are adjudicated in accordance with the relevant legal framework.