2019 (5) TMI 56 - AT - Service Tax

Rectification of mistake - liability of interest and penalty - HELD THAT - Before the Commissioner also assessee had challenged the imposition of interest and he has taken me through the grounds of appeal as well as a letter written by him to the Commissioner dated 24.04.2017 wherein he has prayed for setting aside on interest and penalty both. Further, before the Tribunal also in the ground of appeal, the assessee has challenged the imposition of penalty and interest both and vide order dated 11.10.2018, the Tribunal has allowed the appeal of the appellant. There is no error apparent on the face of the record which needs to be corrected by way of this application - ROM application dismissed.

Summary

Issues:
Rectification of mistake in the Final Order allowing the appeal of the assessee and setting aside the impugned order passed by the Commissioner. Allegation of rejection of appeal of the assessee by the Commissioner (A). Confirmation of demand of Service Tax with interest and imposition of penalty under Section 77 (2) and Section 76 of the Finance Act by the Additional Commissioner. Challenge of penalty imposition by the assessee before the Commissioner and the Tribunal. Liability of the assessee to pay interest.

The judgment addresses the Revenue's application for rectification of mistake in the Final Order where the Tribunal allowed the appeal of the assessee and set aside the Commissioner's order. The Revenue alleged that the Commissioner (A) rejected the appeal of the assessee, confirming the demand of Service Tax with interest and imposing penalties under the Finance Act. The Revenue contended that the assessee still owed interest, as no appeal was filed against it. The AR for the Revenue argued that only the penalty was challenged before the Commissioner (A) and the Tribunal, while the assessee's counsel claimed that both interest and penalty were contested at both levels.

After hearing both sides and examining the record, the Tribunal found that the assessee had challenged both interest and penalty before the Commissioner and the Tribunal. The Tribunal noted that the order allowing the appeal encompassed both interest and penalty. The Tribunal concluded that there was no apparent error in the record requiring correction through the application. Consequently, the Tribunal dismissed the Revenue's application for rectification of mistake, upholding the decision to set aside the impugned order and allow the appeal of the assessee, which included both interest and penalty. The Tribunal pronounced and dictated the order in open Court on 01/03/2019.