2018 (4) TMI 1175 - HC - Service Tax

Rectification of mistake - Adjustment of the second installment of service tax - Held that - Though it is the contention of Ms. Dessai that this document is more of a representation than an application, we cannot overlook the fact that the proprietor of the firm, a lady was suffering from cancer when she made the representation - Further more, Section 74 does not contemplate any particular format as such, empowering the Central Excise to rectify the mistake on his own and, if any mistake is brought to his notice by the Assessee. The Petition can be disposed of by directing the Respondent-Authority to decide the representation dated 20 August 2016.

Summary

Issues:
Challenge to order on adjustment of service tax installment; Typographical error in record leading to further liabilities; Availability of alternate remedy under Section 74 of the Finance Act, 1994; Petitioner's rectification application dated 20 August 2016; Decision on disposal of the petition.

Analysis:
The Petitioner contested the order dated 4 September 2015 by the Additional Commissioner of Central Excise & Service Tax, Goa, specifically regarding the adjustment of the second installment of service tax. The Petitioner, a security services provider, faced a situation where a typographical error in the record of the Authorities wrongly listed a deposit of &8377; 1120101/- as &8377; 120101/-, leading to additional liabilities for the Petitioner. The learned Counsel for the Petitioner argued that this error was the root cause of the issue at hand.

The Respondents raised a preliminary objection, citing the availability of an alternate remedy under Section 74 of the Finance Act, 1994, for rectifying mistakes in the order. The Respondents contended that the Petitioner could have sought redressal by filing an application for rectification within two years of the order or by appealing before the Commissioner of Central Excise (Appeals) as per the Finance Act. The Petitioner, through Mr. Ferreira, asserted that a rectification application was indeed submitted on 20 August 2016, within the stipulated timeframe, as evidenced by a letter annexed to the Petition.

Upon review, the Court noted that the document dated 20 August 2016, while termed a representation by the Respondents, was a valid rectification application considering the circumstances. The Court highlighted that Section 74 does not mandate a specific format for rectification applications, empowering the Central Excise Officer to rectify mistakes upon being informed by the Assessee. The Court directed the Respondent-Authority to decide on the Petitioner's representation dated 20 August 2016 within eight weeks, emphasizing a thorough examination of the rectification details provided in the Petition and its accompanying Memo.

In conclusion, the Court made the rule absolute in the specified terms, without imposing any costs on either party. The judgment focused on ensuring the proper consideration and resolution of the rectification application within the legal framework, addressing the concerns raised by both the Petitioner and the Respondents effectively.