2018 (6) TMI 522 - AT - Service Tax

Rectification of mistake - dismissal of appeal based on litigation policy - Held that - Firstly the issue of refund arises only due to the respondent paying services tax under a wrong assessee code. Therefore, the issue is of not recurring in nature or legal issue relating to the refund or classification was involved, only in such cases the exclusion provided in clause (c) will be applicable - this case does not fall under the clause (c) of para 3 of the instruction dated 17/08/2011 - ROM application dismissed being not maintainable.

Summary

Issues:
1. Rectification of order based on exclusion from litigation policy.
2. Applicability of clause (c) of para 3 of the instruction dated 17/08/2011.
3. Amendment to the instruction dated 17/08/2011 regarding cases involving less than ?10 lakhs.

Analysis:
1. The issue in this case revolved around a ROM application filed by Revenue seeking rectification of an order dated 05/12/2017, contending that the issue of refund was excluded from the litigation policy as per clause (c) of para 3 of the instruction dated 17/08/2011. The Revenue argued that there was an error apparent on the face of the record in dismissing the appeal based on the litigation policy.

2. The Authorized Representative reiterated the grounds of the application, emphasizing the exclusion under clause (c) of the instruction dated 17/08/2011. However, the Counsel for the respondent pointed out that the Government of India had withdrawn clause (3) through an order dated 4th April 2018.

3. Upon careful consideration, the Member (Judicial) found that the issue of refund arose due to the respondent paying services tax under a wrong assessee code. It was clarified that the exclusion under clause (c) of para 3 would only be applicable in cases not recurring in nature or involving legal issues relating to refund or classification. As the present case did not fall under this exclusion, the ROM application was deemed not maintainable. Furthermore, the Government of India had amended the instruction dated 17/08/2011 on 4th April 2018 to encompass cases where the amount involved was less than ?10 lakhs.

4. Consequently, the Member (Judicial) dismissed the ROM application, emphasizing that the issue at hand did not meet the criteria for exclusion under clause (c) of the instruction dated 17/08/2011. The decision was based on the nature of the issue concerning the payment of services tax under an incorrect assessee code, which did not align with the conditions specified for exclusion under the relevant clause.

This comprehensive analysis highlights the key arguments, considerations, and the ultimate decision rendered in the judgment by the Appellate Tribunal CESTAT MUMBAI.