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2017 (5) TMI 888 - AT - Service TaxRectification of mistake - appellant had taken a specific plea that service tax liability needs to be recalculated based upon the cum tax value of the commission paid - the Bench has not addressed to this specific plea taken and submits that if his plea is allowed - Held that - this plea of the appellant in that case that the amount paid needs to be considered as cum tax value has been upheld by the Apex court in the case of COMMR. OF CEN. EXCISE & CUS., PATNA Versus M/s ADVANTAGE MEDIA CONSULTANT & ANR. 2008 (10) TMI 570 - SUPREME COURT - Respectfully following the same, we hold that in the case in hand, our final order needs correction/rectification of mistake to the extent as mentioned - ROM application allowed - decided in favor of appellant.
Issues:
Rectification of mistake apparent on the face of records in the final order dated 2.12.2016 - Recalculation of service tax liability based on cum tax value of commission paid. Analysis: The application before the Appellate Tribunal CESTAT MUMBAI sought rectification of a mistake apparent on the face of records in the final order dated 2.12.2016. The appellant had specifically pleaded that the service tax liability should be recalculated based on the cum tax value of the commission paid. The Tribunal noted that the appellant's plea was not addressed in the original order, and upon reviewing the records, found that the appellant had indeed raised this specific plea during the proceedings. The Tribunal referenced a previous case, Advantage Media, where a similar plea was upheld by the Apex court, leading them to conclude that the final order required correction to reflect the recalculated tax liability based on the cum tax value of the commission paid. The learned counsel representing the appellant argued for the recalculation of the tax liability, stating that if the plea was allowed, the tax liability would reduce from ?1.38 crores to ?1.28 crores approximately. On the other hand, the learned departmental representative contended that the original order was correctly passed by the Tribunal. After considering the submissions from both sides and examining the records, the Tribunal found merit in the appellant's plea, especially in light of the decision in the Advantage Media case. Consequently, the Tribunal held that a rectification of the mistake was necessary to remand the matter back to the adjudicating authority for the recomputation of the service tax liability and interest based on the cum tax value of the commission paid. In its final decision, the Tribunal disposed of the application for rectification of mistake by inserting a new paragraph in the final order to address the recalculated tax liability based on the cum tax value of the commission paid. This rectification was deemed essential to align the final order with the appellant's specific plea and the legal precedent established in the Advantage Media case, as upheld by the Hon'ble Supreme Court. The rectification served to ensure the correct computation of the service tax liability in accordance with the relevant legal principles and precedents, thereby providing clarity and fairness in the adjudication process.
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