2017 (6) TMI 1072 - AT - Service Tax

Rectification of mistake - power of Tribunal to review its own order - case of Revenue is that the said final order cannot be varied at this stage to give a different ruling on reappraisal of evidence - Held that - the final finding of the Tribunal regarding limitation was based on the facts as recorded by the Original Authority. The Original Authority having not considered all the developments, in correct prospective, held against the appellant on the question of limitation. Here, we note that the case has been remanded back to the Original Authority by the Tribunal. The finding with reference to extended period which is made based on findings of the Original Authority can be considered as an error apparent on record. Since, the Original Authority himself has not given a detailed finding, we find it fit and proper that in the denovo adjudication, as directed by the final order of the Tribunal, the issue of limitation is to be examined afresh without any restrictive direction. In other words, the Original Authority should examine afresh the question of limitation also and give his findings on the submissions of various correspondences. The reference made in para 9 of the final order of the Tribunal, to penalty under Section 76 has no relevance. The proceedings before Original Authority did not result in imposition of any penalty under Section 76 and, hence, the reference to such penalty is an error apparent on record. As such, we hold para 9 of the final order is to be deleted. In the final order of the Tribunal. In para 7 of the order reference was made to Custom Department , we note that the same should be read as Department . The word Custom has to be deleted. ROM application allowed - necessary corrections to be made.

Summary

Issues Involved:
1. Includability of various charges in the valuation for service tax.
2. Quantification of taxable value.
3. Applicability of the extended period for the demand.
4. Errors apparent on record in the final order dated 08/07/2016.
5. Penalty under Section 76 and reference to the Custom Department.

Issue-wise Detailed Analysis:

1. Includability of Various Charges in the Valuation for Service Tax:
The Tribunal examined the includability of various charges received by the appellant from passengers for issuing air travel tickets under the category of "transport of passengers embarking in India for international journey by air service." The Tribunal concluded that charges listed from Serial Nos. V to XX are not liable to be included in the taxable consideration. This issue was settled by the Tribunal in its final order dated 08/07/2016, and no apparent error on record was found that required rectification.

2. Quantification of Taxable Value:
The appellants raised issues regarding errors in the quantification of taxable value, such as totaling mistakes in Annexure A to the show cause notice and non-consideration of deductions due to ticket cancellations. The Tribunal noted the error in totaling and directed the Original Authority to rectify it during denovo adjudication. It was emphasized that the Original Authority should also verify whether the quantification of taxable value was based on the correct details submitted by the appellant and not restrict the review solely to the totaling mistake.

3. Applicability of the Extended Period for the Demand:
The appellants argued that the Original Authority and the Tribunal failed to consider the factual details, resulting in an erroneous finding on the limitation period. The Tribunal's final finding on the extended period was based on the Original Authority's findings. The case was remanded back to the Original Authority, and the Tribunal directed that the issue of limitation should be examined afresh without restrictive direction, taking into account the chronology of events and correspondence between the appellants and the Department.

4. Errors Apparent on Record in the Final Order Dated 08/07/2016:
The Tribunal acknowledged certain errors in the final order dated 08/07/2016, such as incorrect references and factual inaccuracies. The Tribunal clarified that the reference to penalty under Section 76 in para 9 of the final order was an error, as no penalty under Section 76 was imposed by the Original Authority. Additionally, the reference to the "Custom Department" in para 7 was corrected to "Department." The Tribunal emphasized that the final order was recalled only for rectifying errors apparent on record.

5. Penalty Under Section 76 and Reference to the Custom Department:
The Tribunal found that the reference to penalty under Section 76 in the final order was irrelevant since no such penalty was imposed by the Original Authority. This reference was considered an error apparent on record and was ordered to be deleted. Similarly, the reference to the "Custom Department" was corrected to "Department."

Conclusion:
The final conclusion of the Tribunal was corrected to reflect the rectifications and directions for denovo adjudication by the primary adjudicating authority. The directions included the non-sustainability of charges mentioned at Serial Nos. V to XX, re-examination of the limitation period, correction of totaling mistakes, and ensuring the appellant is given adequate opportunity to present their case. The order was pronounced in open court on 19/05/2017.