2017 (12) TMI 17 - AT - Service Tax

Rectification of error - case of appellant is that the Tribunal proceeded on the incorrect understanding of the fact that the appellant followed the procedure under Rule 6(2) and also Rule 6(3) of Cenvat Credit Rules, 2004 for common input services - Held that - there is no apparent error pointed out in the said miscellaneous application. The error should be such that the same should be discernible on first look and not involve any drawn out arguments or appraisal of factual or legal position in detail. Rule 6(2) will apply only in cases, where the appellant is having both the taxable as well as exempted services and for input services used for such services. They have maintained accounts in order to exclusively identify the input services, which are used for taxable output services - It cannot be said that following procedure under Rule 6(2) is not maintenance of separate account of common input services. Rule 6(2) specifically covers only such situation. Non-existence of provision for lapsing or reversal of credit, which was taken as per the provision of Cenvat Credit Rules, 2004 - Held that - When the credit itself is not eligible because of this legal provision, the question of legal provision for lapsing or denial is of no consequence. We are fully aware of the statutory powers of the Tribunal as per section 86(7) of the Finance Act, 1994 read with section 35(C)(2) of the Central Excise Act, 1944. These powers cannot be used for review of any orders which are passed after due application of mind. There is no discernible mistake apparent from the record warranting interference in pursuance of this miscellaneous application. ROM application dismissed.

Summary

Issues:
Rectification of error apparent on record in the Final Order No.42014/2017 regarding the procedure followed under Rule 6(2) and Rule 6(3) of Cenvat Credit Rules, 2004 for common input services.

Analysis:
The appellant filed a miscellaneous application seeking rectification of an apparent error in the final order. The appellant argued that the Tribunal misunderstood the fact that they followed the procedure under Rule 6(2) and Rule 6(3) for common input services, whereas they actually followed only Rule 6(3). The appellant contended that this misunderstanding affected the order's discussion and analysis. The Tribunal noted that the appellant did not maintain separate accounts for common input services under Rule 6(2) but followed Rule 6(3) for identifying input services used for taxable output services. The Tribunal clarified that Rule 6(2) applies when both taxable and exempted services are present, and separate accounts are maintained to identify input services for taxable output services.

Regarding the provision for lapsing or reversal of credit, the Tribunal found that the appellant was ineligible to follow both Rule 6(2) and Rule 6(3) simultaneously for input services. As the credit itself was not eligible due to this legal provision, the question of lapsing or denial provision was deemed irrelevant. The Tribunal emphasized that the statutory powers of the Tribunal do not allow for the review of orders passed after due consideration. They stated that there was no discernible mistake apparent from the record that warranted interference through the miscellaneous application. The Tribunal concluded that there was no merit in the application and dismissed it accordingly.