2019 (3) TMI 615 - AT - Service Tax

Rectification of mistake - patent error or not - Business Auxiliary services - overriding commission received by the appellants - CENVAT Credit - input services - Held that - The errors are patent errors which require rectification. Since the facts have been recorded wrongly in the impugned Final Order, it is better to recall the Final Order and re-hear the appeal so that the errors can be rectified in toto - ROM Application disposed off.

Summary

Issues:
Rectification of Mistake (ROM) in Final Order, Levy of service tax under Business Auxiliary Services (BAS) on overriding commission, Disallowance of CENVAT Credit of service tax paid on input services.

Analysis:
The appellant filed applications for Rectification of Mistake (ROM) seeking rectification in the Final Order dated 19.04.2018. The issue revolved around the levy of service tax under Business Auxiliary Services (BAS) on the overriding commission received by the appellant as a General Sales Agent, along with the disallowance of CENVAT Credit on certain input services. The Tribunal had allowed the appeal in favor of the appellant, citing a previous decision in a similar case. However, an error was identified in the Final Order as it incorrectly narrated facts related to a different case involving disputes on Club or Association Service and Renting of Immovable Property Service, which were not relevant to the appellant's appeal.

The respondent acknowledged the error in the discussion of the dispute and facts in the Final Order, specifically related to the demand of service tax on overriding commission received by the appellants. During the hearing, both sides presented their arguments, with the appellant emphasizing the demand of service tax under BAS on the overriding commission as the primary issue. The Tribunal had already settled the issue regarding the demand of service tax under BAS through a previous decision. Additionally, there was a separate issue concerning the disallowance of Credit on various input services, such as insurance charges, housekeeping charges, interior decorator services, maintenance of car/vehicles, and group mediclaim policy. The Final Order inaccurately discussed facts from a different case, leading to the recognition of patent errors requiring rectification.

Considering the errors highlighted by both parties, the Tribunal decided to recall the Final Order to rectify the mistakes in totality. The Final Order was recalled, and the appeal was scheduled for re-hearing to address the identified errors. This decision was pronounced in open court on 08.03.2019, emphasizing the necessity to rectify the errors in the Final Order to ensure a fair and accurate resolution of the appeal.