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2012 (12) TMI 540 - AT - Service TaxMaintainability of rectification of mistake - difference of opinion between Member (Judicial) & Member (Technical) - Promotion or marketing of logo or brand - demand under BAS - Held that - No mistake apparent in the Tribunal s order while arriving at decision by both the members independently. Reliance placed on the decision of Suzlon Infrastructure Ltd. (2009 (5) TMI 64 - BOMBAY HIGH COURT) wherein the Hon ble High Court hold that the application for ROM is maintainable but in that case, both the Members had not given finding on some issues but in this present case Member (Judicial) allowed the appeal on merit and Member (Technical) dealt with all the issues. Therefore, the decision of Suzlon Infrastructure Ltd. (supra) is not applicable to the facts of this case - application for ROM is dismissed.
Issues involved: Application for Rectification of Mistake in an order passed by the Tribunal, difference of opinion between members on liability to pay service tax under 'Business Auxiliary Services', consideration of export of service, limitation, and penalty issues.
Analysis: 1. The applicant filed an application for Rectification of Mistake in a Tribunal order. The Member (Judicial) allowed the appeal, stating that the demands were not sustainable under 'Business Auxiliary Services', absolving the appellant from service tax, interest, and penalties. However, the Member (Technical) disagreed, holding the appellant liable for service tax under 'Business Auxiliary Service' and addressing export of service, limitation, and penalty issues. The matter was referred to a 3rd Member to resolve the disagreement between the members regarding the nature of the appellant's activities in promoting branded goods. The applicant argued that the Member (Judicial) did not address the export of service and limitation issues, indicating a mistake on record. Reference was made to the judgment in the case of Suzlon Infrastructure Ltd. 2009 (243) ELT 497 (Bom.). 2. The Tribunal considered the submissions and noted the case of Suzlon Infrastructure Ltd., where the High Court held that an application for Rectification of Mistake is maintainable even when there is a difference of opinion between members. The Member (Judicial) had given findings on the appellant's non-liability for service tax under 'Business Auxiliary Service', while the Member (Technical) had a different opinion and considered other aspects. As the Member (Judicial) had provided merit-based findings, it was not necessary for them to address other issues. The Tribunal found no apparent mistake in the order dated 26.06.2012, as both members had independently arrived at their decisions. The Tribunal distinguished the present case from the Suzlon Infrastructure Ltd. judgment, as in this case, both members had addressed all relevant issues. Consequently, the application for Rectification of Mistake was dismissed.
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