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2018 (6) TMI 1154 - AT - Service TaxRectification of Mistake - case of Revenue is that applicant should have resorted to appellate remedies instead of seeking review of the decision through section 35C of Central Excise Act, 1944 - Held that - Reliance placed in the case of M/S. INDIAN COFFEE WORKERS CO-OPERATIVE SOCIETY LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, ALLAHABAD 2014 (4) TMI 407 - ALLAHABAD HIGH COURT , where it was held that when there is a defective application, the Designated Authority should return the application for rectification. This order is to be read as a corrigendum of our order A/94088-94089/16/STB dated 29th November 2016 and application is allowed.
Issues:
Challenging orders holding liable for outdoor catering service tax, abatement entitlement consideration, adoption of High Court decision ratio, penalty under Section 78 justification. Analysis: 1. The case involved a challenge against orders holding the applicant liable for tax on outdoor catering services as per the Finance Act, 1994. The Tribunal rejected the appeals, prompting the applicant to seek rectification under section 35C of the Central Excise Act, 1944, citing two errors apparent on the record. 2. During the hearing, the Learned Counsel argued that the applicant was entitled to abatement as per notification no. 1/2006-ST dated 1st March 2006, which was not considered in the impugned orders. The Tribunal had netted demands for a specific period after abatement but failed to do so for the earlier period, leading to the request for a review. 3. The Learned Counsel contended that the Tribunal did not consider their plea to adopt the ratio of a decision by the Hon'ble High Court of Allahabad, which was crucial in determining the liability. The order did not record this submission, although it was referred to in upholding the levy against the applicant. 4. The judgment referred to a case involving the Indian Coffee Workers Co-op Society Ltd, where the High Court set aside penalties under Section 78 of the Finance Act, 1994, emphasizing the conditions required for imposing such penalties. The Court highlighted that penalties should be based on fraud, collusion, willful misstatement, suppression of facts, or contravention with intent to evade payment of service tax. 5. Considering the circumstances and the High Court's decision, the Tribunal modified the impugned orders to allow the benefit of abatement to the applicant and set aside any penalties under Section 78. The order served as a corrigendum to the previous decision and was pronounced in court on 07/06/2018.
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