2016 (11) TMI 1230 - AT - Service Tax

ROM application - principles of natural justice - Held that - a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning - power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious - while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. We do not find any error, much less apparent error in the subject order - ROM application dismissed.

Issues:
1. Appeal against CESTAT order remanding the appeal to the adjudicating authority.
2. Consideration of written submissions and earlier decisions.
3. Recalling the Tribunal order dated 31.08.2016.
4. Review of appeal through ROM application.
5. Denial of refund claim on merits and non-production of documentary evidence.
6. Remand of the matter to the adjudicating authority.
7. Consideration of case laws and decision-making process.
8. Dismissal of ROM application.

Issue 1: Appeal against CESTAT order remanding the appeal to the adjudicating authority
The applicants filed a ROM application challenging the CESTAT order remanding the appeal to the adjudicating authority for a fresh decision after providing a reasonable opportunity of hearing. The counsel for the applicant argued that the Tribunal did not consider their written submissions and failed to evaluate the earlier decision they relied upon. On the contrary, the authorized representative for Revenue contended that both sides were heard extensively, and the order was issued without causing any injustice. The Tribunal held that the matter needed to be remanded back to the adjudicating authority for a fresh decision while keeping all issues open.

Issue 2: Consideration of written submissions and earlier decisions
The counsel for the applicant emphasized that the written submissions were not adequately considered by the Tribunal, and the earlier decision they relied upon was not evaluated on its merits. The Tribunal acknowledged the arguments presented by both sides and noted that the original adjudicating authority and the first appellate authority had not examined the case law submitted by the appellant. Consequently, the Tribunal decided to remand the matter to the adjudicating authority for a fresh decision after providing a reasonable opportunity of hearing to the appellants.

Issue 3: Recalling the Tribunal order dated 31.08.2016
The applicant sought the recall of the Tribunal order dated 31.08.2016 based on the grounds that their contentions were not considered, and the earlier decision they relied upon was not evaluated. The authorized representative for Revenue argued against the recall, stating that the appeal was remanded to the adjudicating authority for a fresh decision, and there was no error apparent on the records. The Tribunal, after careful consideration, found no error in the subject order and dismissed the request for recall.

Issue 4: Review of appeal through ROM application
The authorized representative for Revenue contended that the applicant's ROM application was an attempt to review the appeal, which is not permitted by law. The Tribunal, after examining the arguments of both sides and perusing the records, found no merit in the ROM application and subsequently dismissed it.

Issue 5: Denial of refund claim on merits and non-production of documentary evidence
The Tribunal observed that the impugned show cause notice proposed to deny the refund claim on various grounds such as merits, non-production of documentary evidence, unjust enrichment, and limitation. The adjudicating authority and the first appellate authority had not considered the matter on merits but rejected the refund claim solely on limitation without delving into the case's substance. The Tribunal decided to remand the matter back to the adjudicating authority for a fresh decision after giving a reasonable opportunity of hearing to the appellants.

Issue 6: Remand of the matter to the adjudicating authority
Upon careful consideration of the arguments presented by both sides and examination of the records, the Tribunal concluded that the matter needed to be remanded back to the adjudicating authority for a fresh decision. The Tribunal highlighted that all issues were to be kept open during the fresh decision-making process to ensure a comprehensive review of the case.

Issue 7: Consideration of case laws and decision-making process
The Tribunal referenced the arguments made by the counsel for the applicant regarding the applicability of certain case laws in their case. The Tribunal noted that the decision of remand was based on the failure of the lower authorities to consider the merits of the case and instead focusing only on the issue of limitation. The Tribunal found it appropriate to remand the matter to the adjudicating authority for a fresh decision considering all aspects of the case, including the case laws cited by the appellant.

Issue 8: Dismissal of ROM application
In light of the arguments presented by both sides and the examination of relevant legal principles, the Tribunal dismissed the ROM application filed by the applicants. The Tribunal referred to a Supreme Court decision emphasizing that a mistake apparent on record must be obvious and patent, which was not the case in the present situation. Consequently, the ROM application was deemed to lack merit and was dismissed.

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