2019 (9) TMI 1494 - AT - Service Tax

Rectification of Mistake - error apparent on the face of record or not - applicant herein had challenged the order of the Tribunal by recourse to the appellate jurisdiction of the Hon ble High Court of Bombay but thereafter sought permission for withdrawal with liberty to file appropriate proceedings before the Tribunal - HELD THAT - The applicant highlights non-consideration of the purported conclusion of the adjudicating authority in paragraph no. 13 of the order impugned before the Tribunal. A more diligent reading of the order would make it apparent this formed part of the narration of the several stages that preceded the issue of and contained in the show cause notice. In fact the adjudicating authority taking note of this and very rightly assuming the onus for ascertainment of claim implied in the adjustment of taxes that the charged amounts had been returned sought reports from the jurisdictional field formation. It was the conclusion arrived thereon that was challenged in the appeal of the respondent herein. That conclusion of the adjudicating authority was held to be incorrect by the Tribunal on application of provisions of Service Tax Rules 1994 that in the precedent decisions relied upon were stressed as not amenable to inclusion of conditions beyond those stipulated therein. Any grievance with that finding is not mistake apparent on the record. The appeal before the Tribunal was that of the assessee and the statutory role assigned in appeal is that of confirming modifying or annulling the decision appealed against based on the grounds raised in appeal and the relief sought. The Tribunal is not empowered to entertain any ground of appeal that was not agitated before it and the privilege of stipulating grounds of appeal remains only with the appellant - The applicant appears to entertain the belief that the appellate jurisdiction is no different from the review contemplated in section 129A of Customs Act 1962 which is nothing but the superimposition of a preferred adjudication by the Committee of Chief Commissioners over the actual adjudication by the Commissioner. There are no grounds to conclude that mistake apparent on the record has occurred in the order of the Tribunal - application dismissed - decided against Revenue.

Summary

Issues:
Rectification of mistake in the final order issued by the Tribunal under section 35C(2) of the Central Excise Act, 1944, as applied to proceedings under the Finance Act, 1994.

Analysis:
1. The Revenue filed an application seeking rectification of a mistake in the final order issued by the Tribunal. The applicant challenged the order of the Tribunal, which was initially taken to the Hon'ble High Court of Bombay but later withdrawn with permission to file proceedings before the Tribunal.

2. The applicant contended that the Tribunal failed to consider crucial aspects, such as the proof required under rule 6 of the Service Tax Rules, 1994, and the restricted circumstances for tax adjustment under rule 6(3). Additionally, the applicant argued that the case laws cited were not relevant to the appeal issue.

3. The Tribunal clarified that the scope of rectification under section 35C(2) does not allow for a review of its own order or addressing grievances about its understanding of the appeal issue. The application lacked clarity on the alleged mistake's consequences, hindering the rectification process.

4. The Tribunal noted that details from the Hon'ble High Court's order were elaborated upon in the application without proper authentication, raising concerns about the accuracy of reported information.

5. The applicant claimed that certain crucial issues were not determined correctly, but the Tribunal emphasized that such determinations fall under the jurisdiction of Constitutional Courts, not the Tribunal. The Tribunal cannot remedy errors of judgment through section 35C(2) of the Central Excise Act, 1944.

6. Both parties presented their arguments during the proceedings.

7. The applicant raised concerns about the adjudicating authority's conclusion in the impugned order, but the Tribunal clarified that this conclusion was part of the show cause notice's history and subsequent actions taken, which were duly considered in the appeal.

8. The Tribunal highlighted that the appeal's grounds are solely determined by the appellant, and the Tribunal's role is to confirm, modify, or annul the decision based on those grounds. The Tribunal cannot entertain new grounds not raised in the appeal, and rectification is not a tool to reevaluate appeal grounds.

9. Ultimately, the Tribunal found no grounds to conclude that a mistake apparent on the record had occurred in its order. As a result, the Revenue's application for rectification was rejected.

This detailed analysis of the judgment addresses the issues involved in the rectification application and the Tribunal's decision regarding the alleged mistake in the final order.