2022 (12) TMI 1148 - AT - Service Tax

Prayer for recalling of Final Order - Non-consideration of documents - Small-Scale benefit - Bench was of the view that since there was no data, on record, about commission received during the preceding year i.e. Financial Year 2012-13 hence Small-Scale benefit cannot be granted for the Financial Year 2013-14 - HELD THAT - It is perused that the impugned Final Order is an order which was dictated and pronounced in the open Court. Hence, as pointed out by ld. D.R. there was no occasion for affording an opportunity to the appellant - assessee to submit any document. From the record it is also perused that several letters were sent by the Department to the applicant assessee prior to issue the Show Cause Notice requiring the assessee to provide information and the documents to satisfy that there is no evasion of service tax for rendering the taxable services during the Financial Year 2013-14 2014-15, but no document was ever provided nor any information was given by the appellant. Resultantly, the Show Cause Notice dated 18.10.2018 was served. It is also perused that even before the Original Adjudicating Authority the submission of the assessee in defence talks about the expenses incurred as reimbursement or the discount received from the principal i.e. M/s. Obsurge Biotech Ltd. against the early payment, but only for the Financial year 2013-14 and Financial Year 2014-15 there is no mention of any document for the Financial Year 2012-13. No additional document was ever provided to Commissioner (Appeals). Most of the documents as annexed with the present application also are with respect to Financial Year 2013-14 and 2014-15. Though balance-sheet as on 31st March, 2013 has also been annexed but the fact remains is that the said document, admittedly, was provided on 12.04.2012, for the first time, whereas the order in hand was dictated and pronounced on 11.04.2022. Had it been provided at the time of dictation also the said statement could have been taken into consideration. Being a document which was never provided before any of the adjudicating authorities below there seems no reason otherwise to take this document on record. These observed facts are sufficient for me to hold that such a document cannot be considered for recalling a Final Order. Otherwise also there is no provision which permits the Tribunal to recall its own order. The impugned recalling cannot even be called as the rectification of error apparent on record - Application dismissed.

Summary

Issues:
Recalling of Final Order in Appeal No.ST/50911/2021 for granting Small-Scale benefit for Financial Year 2013-14 based on documents submitted post the order.

Analysis:
The appellant requested the recall of the Final Order dated 11/04/2022 in Appeal No.ST/50911/2021, arguing that documents proving commission amount below Rs. 10 lakh for the Financial Year 2012-13 were submitted post the order. The appellant contended that the Small-Scale benefit should be granted for the Financial Year 2013-14 based on these documents. However, the Department opposed the recall, stating that the Final Order was pronounced in open court, leaving no scope for post-order submissions. The Department highlighted that despite prior opportunities, no documents for the year 2012-13 were ever provided by the appellant.

The Tribunal examined the circumstances and found that the Final Order was indeed pronounced in open court, precluding the submission of documents thereafter. It was noted that the appellant had multiple opportunities to provide necessary information and documents before the Show Cause Notice was issued, but failed to do so. The Tribunal observed that the appellant's submissions during the original adjudication did not mention any documents for the Financial Year 2012-13. The documents submitted post the Final Order primarily related to subsequent financial years, with the only document for 2012-13 provided after the order was already pronounced.

The Tribunal emphasized that the document for the Financial Year 2012-13, submitted after the Final Order, could not be considered for recall as it was never presented before any adjudicating authority earlier. Additionally, the Tribunal highlighted that there was no provision allowing for the recall of its own order, especially when the order was dictated and pronounced in open court. The Final Order explicitly mentioned the denial of the Small-Scale benefit for 2013-14 due to the lack of documents for the preceding year. Consequently, the Tribunal dismissed the application for recall, stating that it did not constitute rectification of an error apparent on record.

In conclusion, the Tribunal upheld the Final Order dated 11/04/2022, emphasizing that post-order submissions cannot be considered, especially when the order was pronounced in open court. The application for recall was dismissed, citing the lack of provision for such a recall and the untimeliness of the submitted document for the preceding financial year.