2016 (9) TMI 689 - AT - Service Tax

Rectification of mistake - interchange of figures in the order - incorrect appreciation of facts - Held that - there is an inadvertent interchange of figures inasmuch as the service tax demand under IPR service is ₹ 13,12,41,198/- and under franchise service is ₹ 20,27,06,713/ but these figures have got inter changed in opening para of the CESTAT order. - order rectified on this ground. Incorrect appreciation of facts - non-consideration of observation given in para 29 of the order in original - no findings has been given on penalty leviable under Sections 76 and 77 - Held that - rectification of so called mistakes sought at Sr. No. (ii), (iii) and (iv) do not fall in this category. - ROM rejected on these grounds. Decided partly in favor of assessee.

Issues:
Rectification of mistake in the Final Order regarding demand amounts under IPR and Franchisee Service, incorrect consideration of facts related to service tax liability under franchisee service, remand of the case for de novo adjudication in relation to IPR service, and absence of findings on penalty leviable under Sections 76 and 77 of the Finance Act, 1994.

Analysis:

1. Rectification of Mistake in Demand Amounts:
The appellant sought rectification of a mistake in the Final Order regarding the demand amounts under IPR and Franchisee Service. The appellant argued that there was an inadvertent interchange of figures in the CESTAT order. The figures for service tax demand under IPR service and franchise service were mistakenly recorded. The Tribunal agreed with the rectification on this point and ordered the correction of the mistake in the opening paragraph of the CESTAT order.

2. Incorrect Consideration of Facts - Service Tax Liability under Franchisee Service:
The appellant contended that the CESTAT order incorrectly held the appellant liable to pay service tax under franchisee service based on income received from distributors. However, the appellant clarified that the subscription income was for purchasing periodicals, not from distributors with representational rights. The Tribunal held that this issue involved an appreciation of facts regarding the nature of the subscription amount, which did not constitute a mistake apparent from the record.

3. Remand for De Novo Adjudication in Relation to IPR Service:
The Tribunal remanded the case for de novo adjudication in relation to IPR service based on the non-speaking nature of the original order. The appellant argued that the Commissioner's findings supported the liability for service tax under IPR for registered patents and designs in India. However, the Tribunal upheld the remand decision, stating that the original order was non-speaking, justifying the need for de novo adjudication.

4. Absence of Findings on Penalty under Sections 76 and 77:
The appellant raised the issue of the CESTAT order not providing any findings on the penalty leviable under Sections 76 and 77 of the Finance Act, 1994. The Tribunal clarified that the imposition of penalties under these sections was left open for de novo adjudication. The Tribunal emphasized that the question of invoking Section 80 for non-imposition of penalty required detailed reasoning and analysis, which exceeded the scope of rectification of mistake.

In conclusion, the Tribunal partially allowed the Rectification of Mistake (ROM) application by correcting the error in demand amounts under IPR and Franchisee Service. However, the other issues raised by the appellant regarding the consideration of facts, remand for de novo adjudication, and penalty leviable under Sections 76 and 77 were not deemed as mistakes apparent from the record and thus were not rectified. The judgment highlighted the distinction between rectifiable mistakes and issues requiring further legal analysis beyond the scope of rectification.

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