2015 (11) TMI 475 - AT - Service Tax

Rectification of mistake - Restoration of appeal - Availment of CENVAT Credit - Tour service - Maintenance of separate accounts - Tribunal consider the issue of penalty only and did not consider the eligibility of Cenvat Credit - appellants utilized Cenvat Credit on those input services which were used for providing non-taxable output service - Held that - An error cannot be said to be apparent if it is not self evident. In the present case there is no error manifest and the Tribunal by its Final Order has passed a detailed order on merits. The Counsel for appellant contends that the issues raised were not considered. The so-called errors pointed out and contentions raised by the appellants counsel are not obvious and are such that they cannot be discovered without detailed argument of the entire appeal. In a catena of decisions, the Apex Court has laid the proposition that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. - applications before me are an ROA application and a Misc. application to convert the ROA into an ROM by causing amendments in the ROA. The learned Counsel for appellant has not put forward any explanation as to why he has filed an ROA - While an application for restoration is to be filed under Rule of 20 of the CESTAT, (Procedure) Rules, 1982, Section 35C(2) of the Central Excise Act, 1944 provides for Rectification of mistake apparent from record. The amendments sought for by the appellants are to the effect of converting not only the nature, but also the very basis of the applications. Such amendments are not permissible. It would cause much prejudice to the other side. The Revenue is unnecessarily put into several rounds of litigations and is also a burden to the public exchequer. - Decided against assessee.

Summary

Issues involved:
1. Amendment of application for restoration of appeal filed as Rectification of Mistake (ROM).
2. Consideration of error apparent on the face of record in the Final Order.
3. Eligibility of appellant to avail Cenvat Credit and export of services.
4. Maintainability of applications seeking amendment and rehearing of appeal.
5. Legal principles governing rectification of mistake apparent from record.

Analysis:

1. The appellant filed an application seeking amendment of the Restoration of Appeal (ROA) application, which was actually a Rectification of Mistake (ROM) application in disguise. The appellant argued that the Final Order did not address the merits of the case, specifically regarding the eligibility of Cenvat Credit and export of services. The appellant sought to recall the Final Order, rehear the appeal on merits, and correct the alleged error apparent on the face of the record.

2. The respondent opposed both the Misc. application and ROA application, contending that they were not maintainable. The respondent argued that the Final Order was passed after hearing both sides, and there was no error apparent on the face of the records. The respondent viewed the applications as an abuse of the proceedings, attempting to recall the Final Order and rehear the appeal.

3. The Tribunal considered the issue of availment of Cenvat Credit by the appellant, who provided tour services to foreign and local tourists. The appellant claimed that services to foreign tourists, paid in convertible foreign exchange, were not taxable, while services to local tourists were taxable. The Tribunal upheld the restriction on Cenvat Credit utilization imposed by the Commissioner (Appeals) and sustained in the impugned order.

4. The Counsel for the appellant relied on legal precedents emphasizing that an error apparent on the face of the record empowers the Tribunal to rectify such errors. However, the Tribunal highlighted that for an error to be rectified, it must be self-evident and not require a detailed argument or extraneous matters to establish its correctness. The Tribunal found that the alleged errors raised by the appellant required extensive reasoning and were not manifest on the face of the record.

5. The Tribunal dismissed both the Misc. application seeking amendment and the ROA application, emphasizing that the nature and basis of the applications could not be altered through amendments. The Tribunal noted that such amendments would prejudice the other party, lead to prolonged litigation, and burden the public exchequer unnecessarily. The applications were deemed non-maintainable, and the appeals were dismissed accordingly.