2018 (7) TMI 1128 - AT - Service Tax

Rectification of mistake - revision power under Section 84(1) of the Act - Held that - The final finding that the Order-in-Revision dated 31.1.2011 is correct is only in relation to Section 84(4) of the Finance Act and otherwise, the Tribunal has already allowed the appeal of the assessee but the assessee has an apprehension that the final findings may not be misinterpreted by the department and in future may not raise the demand - the apprehension is unfounded but still it is clarified that the said final conclusion is only with regard to section 84(4) of the Finance Act - ROM Application disposed off.

Summary

Issues:
Rectification of mistake under Section 35(2) of Central Excise Act, 1944; Revisionary power of Commissioner under Section 84(4) of the Finance Act, 1994.

Analysis:
The applicant-assessee filed for rectification of mistake under Section 35(2) of the Central Excise Act, 1944, as applicable to Service Tax under Section 83 of the Finance Act, 1994. The Tribunal had previously disposed of appeals in favor of the applicant-assessee, allowing CENVAT credit of service tax paid on services and setting aside the impugned Order-in-Appeal. Another appeal questioned the revisionary power of the Commissioner under Section 84(4) of the Finance Act, 1944, to revise decisions pending before the Tribunal. The Tribunal observed the revisionary power exercised by the Commissioner in such cases was incorrect, contrary to Section 84(4), but upheld the impugned order, causing discrepancy in the final conclusion (para 6.1).

During the hearing, the applicant's counsel argued that the Tribunal's conclusion was incorrect, pointing out the inconsistency in the Tribunal's findings and the final decision. The counsel contended that the mistake was apparent on record and required correction through the present application. Conversely, the AR argued against the application, stating that no mistake was evident on record, and the final conclusion favored the assessee, making the clarification unnecessary.

After reviewing the submissions and the record, the Tribunal noted the discrepancy in the conclusion regarding the exercise of revisionary power by the Commissioner. The Tribunal clarified that while the Order-in-Revision was deemed correct in relation to Section 84(4) of the Finance Act, the apprehension of misinterpretation by the department leading to future demands was unfounded. The Tribunal provided clarification that the final conclusion pertained only to Section 84(4) of the Finance Act, ensuring the applicant's concerns were addressed. Consequently, the application for rectification of mistake was disposed of, providing clarity on the issue.