2017 (8) TMI 710 - AT - Service Tax

Rectification of Mistake - review of order - Held that - It is fairly well settled that in the garb of rectification, review of the order already passed is not permissible - The normal principle of law is that once a judgment is pronounced or order is made by the court, Tribunal or adjudicating authority, it becomes functus officio and hence cannot re-decide the matter in the light of fresh arguments. The points advanced in the ROM are those which require re-appraisal of the evidence and law which is not allowed by way of rectification of mistake - ROM application dismissed.

Summary

Issues:
Rectification of mistakes apparent on record in the final order passed by the Tribunal for two appeals.

Analysis:
The appellant filed a Miscellaneous application seeking rectification of mistakes in the final order passed by the Tribunal for two appeals. The appellant argued that various material facts and pleas based on law were not considered by the Tribunal during the proceedings. The appellant emphasized that important points were not reflected correctly in the final order, such as the time bar raised with respect to the show cause notices and the applicability of service tax laws to their activities. The appellant also referred to relevant case laws to support their contentions.

The Revenue, on the other hand, contended that the arguments presented by the appellant were not errors apparent on the face of the record but rather a request for re-decision by the Tribunal. The Revenue cited a Supreme Court decision to support the position that only errors that are self-evident and do not require extensive discussion can be corrected. The Revenue argued that the appellant's contentions required re-evaluation of evidence, which was not permissible at the stage of rectification.

Upon hearing both parties, the Tribunal noted that the final order had considered all arguments presented by the appellants and remanded the matter for a denovo decision in accordance with established legal principles. The Tribunal clarified that it is not necessary to mention specific words of the counsel in the order, as the decision should reflect the cumulative effect of all arguments. The Tribunal highlighted that in the guise of rectification, a review of the order already passed is not allowed.

The Tribunal emphasized that once a judgment or order is made, the Tribunal becomes functus officio and cannot re-decide the matter based on fresh arguments. The Tribunal dismissed the Miscellaneous application, stating that the points raised required re-appraisal of evidence and law, which was not permissible through rectification. The appellant was granted the liberty to present their arguments before the adjudicating authority during the de novo proceedings.

In conclusion, the Tribunal dismissed the Miscellaneous application and pronounced the order in open court on 18.08.2017.