2020 (7) TMI 294 - AT - Service Tax

Rectification of mistake - typographical order - errors are impressed upon to be the error apparent on record - HELD THAT - The very perusal makes it ample clear that once an activity is not taxable, the order confirming the tax liability cannot be passed and thus is an error. Hence, there is no hesitation to hold that the word upheld in the is a typographical error. It should be read as the order to that extent is hereby set aside . With respect to the remaining mistakes as pointed out by the applicant since those have been objected as being out of scope of the rectification, we first need to highlight the scope of rectification. The Tribunal no doubt can recall its order in view of Section 129 B (1) of Central Excise Act, 1944. Anything to become the subject matter of rectification it has to be self evident, obvious and palpable mistake which do not require any further deliberations. Reverting to the remaining submissions of the applicant when read along with the final order, it is observed that the plea about the composition scheme has clearly been dealt with as specific finding that the rate at which the Appellant has paid the duty is in itself sufficient that he has not availed the benefit of composition scheme. Hence, there was no reason with this Tribunal to order for any consequential benefit - Coming to the calculation error as pointed out since the same involves a long drawn procedure of verifying the record which otherwise is out of the scope of the Tribunal. The mistake as alleged is, therefore, not at all self evident, hence cannot be called as error apparent on record. As for as the plea of cum-tax-benefit is concerned, the plea has not been raised in grounds of appeal. The allegation that the same was not considered by this Tribunal despite been submitted is, therefore, not sustainable. The request about making a typographical correction in para-8 of the final order has been considered, rest all the requests have been declined - Application allowed in part.

Summary

Issues:
Rectification of mistake in final order regarding demand on "shifting of overhead cables/wires" and other points argued by the appellant.

Analysis:
The judgment deals with an application seeking rectification of a mistake in the final order related to the demand on "shifting of overhead cables/wires" and other points raised by the appellant. The applicant argued that certain points were not considered in the final order, leading to errors that needed rectification. The tribunal examined the typographical error in para-8 of the final order, where the demand on non-taxable activity was wrongly confirmed. The tribunal concluded that the word "upheld" in the order was a typographical error and should be read as "the order to that extent is hereby set aside."

The tribunal discussed the scope of rectification, citing legal precedents such as the case of Honda SIEL Power Products Ltd. Vs. CIT and Commissioner of Central Excise Mumbai Vs. NTB International Pvt. Ltd. The tribunal emphasized that rectification is permissible only for self-evident and palpable mistakes that do not require further deliberation. The judgment highlighted that the tribunal is duty-bound to correct mistakes where an issue has been argued but not considered in the order, as it constitutes a mistake apparent on record.

Regarding the appellant's plea about the composition scheme and calculation errors, the tribunal found that the composition scheme issue had been adequately addressed in the final order. The tribunal noted that the calculation error and the plea for cum-tax benefit were not self-evident mistakes and were beyond the scope of rectification. Consequently, the tribunal rejected the remaining grievances of the applicant as being outside the purview of rectification.

In conclusion, the tribunal allowed the typographical correction in para-8 of the final order but declined the other requests for rectification. The judgment was pronounced in open court on 15.01.2020, thereby partly allowing the application for rectification while rejecting the remaining requests.