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2008 (6) TMI 107 - AT - Service TaxRetrospective amendment GTO service - final order was passed on the presumption that SCN was issued prior to that retrospective amendment and demand cannot be confirmed on the basis of SCN issued prior to amendment. The fact that corrigendum has been issued after the amendment is on record - as the final order was passed without taking into consideration the fact which was on record, there is an error apparent on record in the Final Order - hence the same is recalled
Issues:
Rectification of mistake application regarding Service tax on goods transport service. Analysis: The Revenue filed a rectification of mistake application concerning Final Order No. ST/26/08 dated 30-1-08, contending that there was an error apparent on record. The issue arose from a show cause notice for demand of Service tax on goods transport service issued on 15-11-2002, followed by a retrospective amendment and a corrigendum to the show-cause notice issued on 4-11-04. The Revenue argued that the final order did not consider the corrigendum issued after the retrospective amendment in May 2003, which was evident on record. The assessee, on the other hand, argued that rectification is limited to errors apparent on record, citing the decision in the case of T.S. Balram, Income Tax Officer, stating that a mistake apparent from the record cannot be a debatable point of law. However, the Tribunal found that a material fact affecting the decision was not considered in the final order. It was presumed in the final order that the show-cause notice was issued before the retrospective amendment in May 2003, and the demand could not be confirmed based on the pre-amendment notice. The Tribunal noted that the corrigendum issued after the amendment was on record and had been acknowledged by the adjudicating authority and Commissioner (Appeals). Consequently, the Tribunal concluded that there was an error apparent on record in the Final Order No. ST/26/08 dated 30-1-08 as it was passed without considering a crucial fact essential for the decision. Therefore, the Tribunal recalled the order and restored the appeal to its original number, directing the Registry to list the appeal for further proceedings on 31-7-2008.
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