2018 (7) TMI 330 - AT - Service Tax

Rectification of Mistake - case of appellant is that the Tribunal while passing the Final Order had not considered the case laws relied upon by the Respondents - Held that - The Tribunal rejected the findings of the Commissioner (Appeals) that they were under bona fide belief of not to pay the Service Tax on GTA Service. In such situation, the Tribunal observed that none of the case laws cited by the respondent is relevant in the present case - there is no error in the order of the Tribunal on this issue. The next contention of the Ld. Counsel is that the final order was pronounced on 11.10.2017 in the open court in the absence of the respondent - Held that - The Registry of the Tribunal had fixed notice in respect of pronouncement of the order. In any event, it cannot be construed as error in the order of the Tribunal - there is no error. ROM Application dismissed.

Summary

Issues: Rectification of mistake in Final Order, Waiver of penalties under Section 80 of the Finance Act, 1994, Barred by limitation, Consideration of case laws, Pronouncement of final order in the absence of respondent

Rectification of Mistake in Final Order:
The Respondent filed an application for rectification of mistake in the Final Order dated 11.10.2017, where the Tribunal set aside the order of the Commissioner (Appeals) and restored the order of the original authority, allowing the appeal filed by the Revenue. The Respondent contended that the Tribunal did not consider the case laws relied upon by them. However, the Tribunal observed that the Respondent had not refuted the Revenue's contention that they were aware of the liability to pay Service Tax from 22.05.2006, rejecting the Commissioner (Appeals) findings that the Respondent was under a bona fide belief of not having to pay the Service Tax on GTA Service. The Tribunal deemed none of the case laws cited by the Respondent as relevant, leading to the dismissal of the application.

Waiver of Penalties under Section 80 of the Finance Act, 1994:
The Commissioner (Appeals) had set aside the penalties imposed on the Respondent, stating that the case was fit for the waiver of penalties under Section 80 of the Finance Act, 1994. The Revenue, in their appeal, argued that the Respondent deliberately evaded paying the service tax, pointing out that the Respondent paid the tax only after a year of being asked to submit details, indicating a clear case of suppression of facts with an intent to evade payment. The Tribunal agreed with the Revenue, emphasizing that the Respondent's actions warranted the imposition of penalties.

Barred by Limitation:
The Respondent argued that the demand was barred by limitation. However, the Tribunal found no attempt by the Respondent to refute the Revenue's grounds, concluding that it was a clear case of suppression of facts with an intent to evade tax, justifying the imposition of penalties.

Consideration of Case Laws:
The Respondent contended that the Tribunal did not consider the case laws relied upon by them, citing them in their application. However, upon review, the Tribunal found that the case laws cited were not relevant to the present case, as the Respondent had not refuted the Revenue's contentions regarding their awareness of the tax liability.

Pronouncement of Final Order in the Absence of Respondent:
The Respondent's Counsel raised a concern that the final order was pronounced in open court on 11.10.2017 in the absence of the Respondent. The Tribunal clarified that the Registry had fixed a notice regarding the pronouncement of the order, indicating that there was no error in the order due to the absence of the Respondent during the pronouncement.

This detailed analysis covers the various issues involved in the legal judgment, addressing the arguments presented by both parties and the Tribunal's reasoning behind the final decision.