2018 (1) TMI 920 - HC - Service Tax

Rectification of Mistake application - grievance was that the adjudication order did not take into account the fact that AAI had discharged all its liabilities towards non-traffic revenue including the rent on Scope Complex which was in terms of the Finance Act, 1994 - Held that - it is significant that the order dated 8th January 2008, passed by the CST rejecting the rectification application itself notes that AAI had filed a revised return on 26th June, 2006. In any event, this formed part of the assessment record and, therefore, available with the Department. In such circumstances, the CST could not have restricted the examination to the SCN and the reply thereto, but was expected to examine the assessment record. The Court is unable to agree with the contention of learned counsel for the Respondent that it was incumbent on AAI to have drawn the attention of the adjudicating authority to the fact of filing of the revised return on 26th June, 2006. It is expected that the adjudicating authority will examine the entire record of AAI not limited to the documents supplied with the SCN or supplied along with the reply thereto. The rectification application should be decided afresh within a period of eight weeks - petition allowed by wya of remand.

Summary

Issues:
Challenge to order by Customs, Excise and Service Tax Appellate Tribunal (CESTAT) and Commissioner of Service Tax (CST), Maintainability of writ petition, Rectification of Mistake application, Consideration of revised return in adjudication order.

Challenge to CESTAT and CST Orders:
The writ petition by the Airports Authority of India (AAI) challenged the order of CESTAT dated 28th August, 2014, which upheld the order of CST dated 8th January, 2008. The petition was pending for two years with no serious objection to its maintainability, prompting the Court to proceed on merits.

Maintainability of Writ Petition:
Although AAI had an alternative statutory remedy of appeal, it chose to directly approach the Court due to errors in the impugned orders. The Respondent did not raise any significant objections to the maintainability of the petition.

Rectification of Mistake Application:
AAI filed a Rectification of Mistake (ROM) application before CST under Section 74 of the Finance Act, 1994, citing a mistake apparent in the adjudication order dated 15th December, 2006. The CST rejected the application on 8th January, 2008, stating no mistake was apparent.

Consideration of Revised Return in Adjudication Order:
The main grounds for rectification included rent charged by AAI for space in the Scope Complex and reliance on provisional figures from Show Cause Notice (SCN) instead of figures in the revised return. The Court found that the adjudication order did not consider the figures from the revised return, emphasizing the need for the adjudicating authority to examine the entire assessment record.

Decision and Directions:
The Court set aside the orders rejecting the rectification application and directed the AAI's rectification application to be considered afresh by the Appropriate Authority. The Respondent was instructed to provide the necessary details to AAI within two weeks for a fresh decision within eight weeks after the hearing. The petition was disposed of with no order as to costs.