2015 (3) TMI 557 - AT - Service Tax

Rectification of mistake - refund claim of service tax - Rverse charge mechanism - adjudicating authority rejected the claim as time-barred and the Commissioner (Appeals) allowed the appeal filed by the appellant - Tribunal denied refund claim - Held that - In the case of Indian National Ship Owners Association 2008 (12) TMI 41 - BOMBAY HIGH COURT and 2009 (12) TMI 850 - SUPREME COURT OF INDIA , the Hon. Bombay High Court and Apex Court did not consider the levy to be unconstitutional in the sense it was not a levy beyond the powers given by Constitution. This position is clear because after insertion of section 66A of the Act, now such tax is being collected without any successful challenge to the said section. Prior to 18-04-2006 when 66A was introduced the only issue was that the Rule under which the tax was collected was considered to be not authorized by provisions in Finance Act, 1994. So the levy has to considered only as without authority of law and not as unconstitutional . - there appears to be no error apparent on the face of record. The appellants upon contending the findings of the Tribunal and not an any omission or error apparent on record. This amounts to review of its own order which is not permissible under Section 35C. - Rectification denied.

Summary

Issues:
Rectification of mistake in the final order regarding service tax paid under reverse charge mechanism.

Analysis:
The appellant filed for rectification of mistake in the final order regarding service tax paid under reverse charge mechanism. The appellant received services from a service provider located outside India and paid service tax under reverse charge mechanism. The Hon'ble Bombay High Court and the Supreme Court decisions were cited regarding the authority of law for service recipient to pay service tax. The appellant filed a refund claim after the Supreme Court's order. The adjudicating authority rejected the claim as time-barred, but the Commissioner (Appeals) allowed the appeal. The Revenue filed an appeal before the Tribunal, which set aside the impugned order and allowed the Revenue's appeal.

The appellant contended that there were errors in the Tribunal's final order, specifically regarding the levy and collection of tax without authority of law. The appellant sought rectification based on the Supreme Court's judgment in the case of Mafatlal Industries. The appellant cited relevant case laws to support their argument. On the other hand, the Revenue argued that there were no errors apparent on record and that the Tribunal had no power to review its own order. The Revenue also cited various case laws to support their stance.

The Tribunal, after considering the submissions and perusing the records, found that there was no error apparent on the face of the record. The Tribunal held that the appellant's contentions did not point to any omission or error apparent on record, amounting to a review of its own order, which is not permissible under Section 35C. The Tribunal concluded that there were no valid grounds presented by the appellant, and thus rejected the ROM application filed by the appellant.

In the operative part of the order pronounced on 18.8.2014, the Tribunal rejected the appellant's application for rectification of mistake, emphasizing that the error must be obvious and patent, and not established through a long process of reasoning and points. The Tribunal upheld its original findings based on the Supreme Court's judgment and relevant legal principles, denying the appellant's request for modification of the Tribunal's final order.