2017 (11) TMI 403 - AT - Service Tax

Rectification of mistake - applicability of N/N. 13/2003-S.T., dated 20-6-2003 - issue involved in the present appeal was of exemption N/N. 13/2003-S.T., dated 20-6-2003 which can only be decided by a Division Bench and not by Single Member Bench - Held that - there is no error apparent on the record which needs to be corrected and the said decision need not be recalled as the appellant has participated in the proceedings and has not raised the said objection till the disposal of the case - ROM application dismissed.

Summary

Issues:
Rectification of order under Section 35C(2) of the Act - Applicability of exemption Notification No. 13/2003-S.T. - Single Member Bench's jurisdiction - Mistake apparent on the record.

Analysis:
The appellant filed a miscellaneous petition seeking rectification of an order under Section 35C(2) of the Act, arguing that the issue of the applicability of exemption Notification No. 13/2003-S.T. should have been decided by a Division Bench and not a Single Member Bench. The appellant contended that the decision by the Single Member Bench was a mistake apparent on the record, citing relevant case laws to support the argument (Sheth P.T. Surat General Hospital v. CC, Smriti Properties Pvt. Ltd. v. Settlement Commission, Orion Conmerx Pvt. Ld. v. CC, and CC v. D.K.R. Traders).

Upon hearing both parties and examining the records, the learned counsel for the appellant emphasized that the matter should have been decided by a Division Bench due to the nature of the issue. However, the learned AR representing the respondent opposed the rectification application, asserting that there was no error on the record warranting interference by the Tribunal. The AR highlighted that the appellant had actively participated in the proceedings before the Single Member Bench without raising any objections at that time, only bringing up the issue after the disposal of the case.

In the judgment, the Member (J) noted that the appellant had not raised any objections regarding the jurisdiction of the Single Member Bench until after the case was concluded. Considering the submissions of both parties, the Member (J) concluded that there was no error apparent on the record that required correction. The judgment highlighted that the appellant's participation in the proceedings without raising the objection earlier weakened the merit of the rectification application. Consequently, the Member (J) dismissed the application for rectification, finding it devoid of merit.

In summary, the judgment dealt with the issue of rectification of an order under Section 35C(2) of the Act concerning the jurisdiction of a Single Member Bench to decide on the applicability of an exemption notification. The decision emphasized the importance of timely objections during proceedings and concluded that the rectification application lacked merit due to the appellant's failure to raise the jurisdictional issue before the case's conclusion.