2019 (5) TMI 55 - AT - Service Tax

Rectification of mistake - error apparent on the face of record or not - HELD THAT - There is no error apparent on the face of the record which needs to be rectified. Further, the applicant through this application wants the Tribunal to consider the order afresh on merits which is beyond the scope of ROM application. ROM application is dismissed.

Summary

Issues:
Rectification of mistake in charging Service Tax and filing ST-3 Returns late; Imposition of penalty under Section 78 of the Act; Applicability of Section 8 in the case.

Analysis:
The applicant filed a miscellaneous application seeking rectification of a mistake related to charging Service Tax and filing ST-3 Returns late. The applicant claimed that the company had no intention to evade payment and promptly paid the tax upon inquiry by the Department. Additionally, the applicant contested the penalty imposed under Section 78 of the Act and filed an appeal against it. The Tribunal, after hearing both sides and examining the records, considered the arguments presented. The applicant's counsel argued that Section 78 should not apply when full tax is paid without intention to evade, and provisions are reflected in the audited balance sheet, with no new findings by the Department. The counsel also raised the issue of the Tribunal not considering the applicability of Section 8 in the case. On the other hand, the Ld. AR contended that the applicant was attempting to challenge the order on merits through the rectification of mistake application, which is not permissible.

The Tribunal, upon reviewing the submissions and evidence, found no apparent error on record requiring rectification. The Tribunal noted that the applicant's application essentially sought a reconsideration of the order on its merits, which falls outside the scope of a rectification of mistake application. Consequently, the Tribunal dismissed the application, stating that there was no merit in the request. The Tribunal emphasized that the application aimed to have the Tribunal revisit the order, which was beyond the permissible scope of a rectification of mistake application. Therefore, the Tribunal dismissed the application for rectification of mistake related to the imposition of penalty under Section 78 of the Act and the applicability of Section 8 in the case. The order was pronounced and dictated in open court on 28/02/2019.