2015 (5) TMI 597 - AT - Service Tax

Rectification of mistake - Imposition of penalty - Calculation of period of limitation - Held that - If there is a mistake apparent on record the application for rectification of mistake can be filed within 2 years of the date of which such order was passed. Admittedly in this case the appellant has filed the application on Rectification of Mistake within two years of the order of adjudication - On going through the calculation shown in the calculation sheet for imposition of penalty I find that for the month of July 2006 the due date is 05.08.2006 whereas service tax was paid by the appellant on 28.09.2006. Therefore, the number of days for period paid were 54 days whereas it is shown as 115 days. Therefore, there is a mistake apparent on record for which impugned order is required to be reconsidered for calculation purpose whether the penalty has been imposed by calculating 54 days or 115 days for appellant and thereafter to arrive at the correct amount of penalty imposable on the appellant - matter remanded back - Rectification done.

Summary

Issues:
1. Appeal against imposition of penalty for non-payment of Service Tax.
2. Application for rectification of mistake under section 74 of the Finance Act, 1994.
3. Appeal dismissed by Ld. Commissioner (A) on the ground of limitation.
4. Dismissal of appeal due to no mistake apparent on record.
5. Consideration of rectification application within the prescribed time limit.
6. Rejection of appeal as time-bar by Ld. Commissioner (A).

Analysis:

1. The appellants contested the imposition of a penalty for non-payment of Service Tax from October 2004 to July 2006. The appeal was interconnected as both cases were taken up together. The appellant paid the service tax with interest after a show cause notice was issued proposing the penalty. The appeal was dismissed by the Ld. Commissioner (A) due to being filed beyond the limitation period, leading to the appellant seeking redressal.

2. Following the adjudication order, the appellant filed an application for rectification of mistake under section 74 of the Finance Act, 1994, within the prescribed time limit. However, the Adjudicating Authority rejected the application, leading to another appeal being dismissed by the Ld. Commissioner (A) on the grounds of no apparent mistake on record, prompting the appellant to seek further review.

3. The appellant's counsel argued that the dismissal based on the limitation period was not valid as the rectification application was filed within the stipulated time frame. Additionally, discrepancies in the calculation of the number of days for payment of Service Tax were highlighted, indicating a mistake on record that needed rectification under Section 14 of the Act. The matter was proposed to be remanded back to the Adjudicating Authority for reconsideration.

4. The opposing argument contended that the appellant had multiple opportunities to present their case and failed to address the issues in a timely manner. The knowledge of the number of days for payment was deemed to be with the appellant, and the rectification of mistake was considered irrelevant to the merits of the case.

5. Upon review, it was found that the appellant had filed the rectification application within the prescribed time limit, and a mistake was apparent in the calculation of the penalty period. The order was set aside, and the matter was remanded back to the Adjudicating Authority for proper consideration under section 74 of the Finance Act, 1994.

6. In another appeal, the Ld. Commissioner (A) had rejected the appeal as time-bar, which was found to be incorrect based on the filing of the rectification application within the statutory period. The order was set aside, and the appeal was allowed, emphasizing the importance of adhering to the provisions of the Act.

This detailed analysis of the legal judgment covers the issues raised, arguments presented, and the final decision rendered by the tribunal regarding the appeals and applications under consideration.