2015 (2) TMI 885 - AT - Service Tax

Rectification of mistake (ROM) apparent on order - Review of application - Rent a cab service/ Tour operator service - Bus reservation charges - Held that - In para 6 of our order, we have discussed the issue at length and we have observed that the bus reservation agreement is for booking of bus for the tours undertaken to Nasik, Ellora, Ghrisneshwar, Siddharth Garden, and so on and it is in relation to the conduct of the tours and therefore, rightly forms part of the tour operator's service as defined in law. We have also noted that for the previous period in appellant's own case, the matter had been examined by this Tribunal and it was held that the appellant would be liable to discharge service tax liability under the category of 'tour operator's charges' w.e.f. 10/09/2004. Therefore, we do not find any merit in the rectification application with regard to the confirmation of service tax demand on the bus reservation charges collected by the appellant in respect of the tours undertaken for the period prior to 01/06/2007. It is a settled position that in any ROM application, the mistake should be apparent on the face of the record. If the issue involves detailed reasoning or re-appreciation of evidence it would be beyond the scope of an ROM application and would amount to review of the order which is not permissible as held by the apex Court in the case of RDC Concrete (India) Pvt. Ltd. 2011 (8) TMI 25 - SUPREME COURT OF INDIA and ACSU Ltd. 2002 (12) TMI 87 - SUPREME COURT OF INDIA . In the present application, what the appellant is seeking is review of the order by re-appreciation of the arguments which is not permissible. - Decided against the assessee.

Summary

Issues:
Rectification of mistake application against the final order dated 31/01/2014 regarding service tax demand on bus reservation charges under 'tour operator service' prior to 01/06/2007 and imposition of penalty under Section 76.

Analysis:
The appellant filed a rectification of mistake application against the final order dated 31/01/2014, claiming that the service tax demand on bus reservation charges should fall under 'rent-a-cab service' from 01/06/2007, not 'tour operator service' from 10/09/2004. The appellant also argued that penalty under Section 76 was not justified as it pertained to a statutory interpretation issue. The Revenue, represented by the Additional Commissioner, contended that the service tax levy on bus reservation charges was correctly upheld under 'tour operator services' from 10/09/2004 as the charges were related to the conduct of tours. The Tribunal examined the issue extensively and noted that the bus reservation charges were integral to the tour operator's service, as per the law. Previous rulings also supported the liability to discharge service tax under 'tour operator's charges' from 10/09/2004. Consequently, the rectification application challenging the service tax demand on bus reservation charges for the period before 01/06/2007 was deemed meritless.

Regarding the imposition of penalty under Section 76, the Tribunal clarified that mens rea was not a requirement for penalty imposition. The mere delay or default in service tax payment sufficed for penalty under Section 76. Therefore, irrespective of the nature of the issue, including interpretation matters, the penalty could be imposed. The Tribunal found the rectification application lacking merit on this aspect as well.

In considering the rectification of mistake application, the Tribunal emphasized that the mistake must be apparent on the face of the record. Detailed reasoning or reevaluation of evidence beyond the scope of a rectification application would amount to a review of the order, which is impermissible. Citing precedents, the Tribunal highlighted that seeking a review by reappreciating arguments was not allowable. Consequently, the Tribunal dismissed the rectification of mistake application, as it did not meet the criteria for rectifiable errors and attempted to review the order by reappreciating arguments, which was not permissible.