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2023 (8) TMI 542 - HC - Service TaxRectification of mistake - mistake apparent of the face of record or not - Refund claim - export of services or not - Petitioner had not received the entirety of the consideration in foreign exchange - not allowing the Petitioner s Appeal for the period 2010-11 in the operative portion of the Final Order BOARD OF CONTROL FOR CRICKET IN INDIA VERSUS COMMISSIONER OF SERVICE TAX-II, MUMBAI (VICE-VERSA) 2018 (12) TMI 872 - CESTAT MUMBAI - feed in the present matter left India or not. For FY 2011-12, the CESTAT has committed a clear mistake apparent on record by holding that the Petitioner had not received the entirety of the consideration in foreign exchange - HELD THAT - The submission of the petitioner that the Tribunal s finding that the petitioner has not received the entirety of the consideration in foreign exchange cannot be construed as a mistake apparent from the record. The fact that the petitioner has made an attempt to canvass this point by drawing attention to various documents for 2 hours itself indicates that such error cannot be construed as a mistake apparent from the record. It would amount to reconsideration of the disputed facts on record. This is a disputed question of fact whereby the contention of the petitioner that they have received full consideration in foreign exchange has been rejected by the Tribunal and same is also disputed in show cause notice. Such a disputed question of fact cannot constitute mistake apparent from record - the Tribunal was justified in observing that what is sought to be attempted by the petitioner in the rectification application is a review of the order which cannot be done under Section 35C(2) of the Central Excise Act as applicable to the Service tax - the Tribunal was not wrong in rejecting the rectification application on this error. For FY 2010-11, the CESTAT answered the question of law in favour of the Petitioner, but erred in not allowing the Petitioner s Appeal for the period 2010-11 in the operative portion of the Final Order in BOARD OF CONTROL FOR CRICKET IN INDIA VERSUS COMMISSIONER OF SERVICE TAX-II, MUMBAI (VICE-VERSA) 2018 (12) TMI 872 - CESTAT MUMBAI - HELD THAT - The Tribunal categorically observed that for the period post 27th February 2010, the said benefit has been extended to the petitioner, to the extent they have shown that the payment against the said services was received in convertible foreign exchange. Therefore, the petitioner cannot contend that although the question of law is answered in favour of the petitioner, the Tribunal in the operative portion has not given any such finding. In paragraph 7.10 of the original order, the Tribunal has categorically held that post 27th February 2010, the petitioner has been given benefit of export, to the extent of payment received in convertible foreign exchange. In view thereof, the same cannot constitute a mistake apparent on record. Petitioner had cited the decision of the CESTAT in COMMISSIONER OF SERVICE TAX-VI, MUMBAI VERSUS BALAJI TELEFILMS LTD. 2016 (4) TMI 152 - CESTAT MUMBAI in support of its case on merits. This was distinguished by the CESTAT on the sole premise that the feed in the present matter did not leave India whereas the feed in the Balaji Telefilms case left India prior to returning to India. This is a clear factual error since the Petitioner s feed undoubtedly does leave India - HELD THAT - On a query posed to the petitioner as to whether wrong distinction of a particular decision made by the Tribunal can at all constitute a mistake apparent on record, the petitioner was fair to contend that it cannot be the case. In any view of the matter, whether the decision of Balaji Telefilms has been correctly appreciated by the Tribunal or not, would require debate and which certainly cannot constitute a mistake apparent from the record. The Tribunal in its original order dated 10th December 2018 have dealt with this decision and observed that it is distinguishable on facts. Therefore, the Tribunal was justified in rejecting the rectification application filed by the petitioner with respect to error no. 3 since same would not amount to mistake apparent from record. Section 35C (2) read with Section 83 of the Finance Act, 1994 empowers the Tribunal to rectify the order only on mistakes which are apparent from record. The phrase mistake apparent from record has been explained by the Supreme Court as far back as in the year 1971 in case of TS BALARAM, INCOME-TAX OFFICER, COMPANY CIRCLE IV, BOMBAY VERSUS VOLKART BROTHERS AND OTHERS 1971 (8) TMI 3 - SUPREME COURT wherein the Supreme Court held that a debatable point of law cannot constitute a mistake apparent from the record on which two opinions are conceivable, it cannot be said to be an error apparent on the face of the record. In the present case as observed, none of the errors agitated constitutes mistake apparent from record. The Tribunal s order rejecting application of the petitioner to rectify mistake apparent from record in its order cannot be faulted - Petition dismissed.
Issues Involved:
1. Whether the Tribunal committed a mistake apparent on record by holding that the petitioner had not received the entirety of the consideration in foreign exchange for FY 2011-12. 2. Whether the Tribunal erred in not allowing the petitioner's appeal for FY 2010-11 despite answering the question of law in favor of the petitioner. 3. Whether the Tribunal wrongly distinguished the decision in Commissioner of Service Tax-VI v. Balaji Telefilms Ltd. Summary: Issue 1: Consideration in Foreign Exchange for FY 2011-12 The petitioner contended that the Tribunal committed a clear mistake apparent on record by holding that the petitioner had not received the entirety of the consideration in foreign exchange for FY 2011-12. The Tribunal, in its original order, found that the petitioner had not claimed the benefit of export of service for the entire amount as the entire consideration was not received in convertible foreign exchange. The Tribunal's finding was based on substantial amounts received in Indian Rupee from Sony Picture Entertainment India Ltd. on behalf of M/s. MSM Singapore Pte. The Tribunal concluded that the petitioner's claim involved disputed facts, which cannot constitute a mistake apparent from the record. The Tribunal's rejection of the rectification application on this ground was upheld. Issue 2: Appeal for FY 2010-11 The petitioner argued that although the Tribunal answered the question of law in their favor, it erred in not allowing the appeal for FY 2010-11 in the operative portion of the final order. The Tribunal had observed that for the period post-27th February 2010, the benefit of export of service was extended to the petitioner to the extent of payment received in convertible foreign exchange. This observation was found to be consistent with the Tribunal's original order, and thus, the petitioner's contention did not constitute a mistake apparent on record. Issue 3: Distinguishing Balaji Telefilms Decision The petitioner claimed that the Tribunal wrongly distinguished the decision in Commissioner of Service Tax-VI v. Balaji Telefilms Ltd. on the premise that the feed in the present matter did not leave India, whereas it did. The Tribunal had dealt with this decision and found it distinguishable on facts. The Tribunal's rejection of the rectification application on this ground was justified as it did not amount to a mistake apparent from the record. Conclusion: The Tribunal's order rejecting the rectification application was upheld as none of the errors agitated constituted a mistake apparent from the record. The petition was dismissed with no order as to costs.
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