2018 (8) TMI 564 - HC - Service Tax

Adjustment of the second installment of service tax - Held that - The Petitioner had called upon the Authorities to verify the office record and rectify the error. Though it is the contention of Ms. Dessai that this document is more of a representation than an application, we cannot overlook the fact that the proprietor of the firm, a lady was suffering from cancer when she made the representation. Further more, Section 74 does not contemplate any particular format as such, empowering the Central Excise to rectify the mistake on his own and, if any mistake is brought to his notice by the Assessee. The Petition can be disposed of by directing the Respondent-Authority to decide the representation dated 20 August 2016.

Summary

Issues:
Challenge to order on adjustment of service tax installment; Typographical error leading to further liabilities; Availability of alternate remedy under Section 74 of the Finance Act, 1994; Rectification application filed by the Petitioner; Decision on rectification application pending.

Analysis:

The Petitioner challenged the order of the Additional Commissioner of Central Excise & Service Tax, Goa, regarding the adjustment of the second installment of service tax. The Petitioner, a security service provider, faced a typographical error in the record of the Authorities where a deposit of ?1120101/- was incorrectly recorded as ?120101/-, resulting in additional liabilities for the Petitioner.

The Respondents raised a preliminary objection citing the availability of an alternate remedy under Section 74 of the Finance Act, 1994. This section empowers the Central Excise Officer to rectify mistakes in the order. The Respondents contended that the Petitioner could have sought rectification within two years of the order or filed an appeal before the Commissioner of Central Excise (Appeals).

The Petitioner had indeed filed a rectification application on 20 August 2016, within the stipulated period. Although the Respondents argued that the document was more of a representation than an application, the Court noted the circumstances of the Petitioner, a cancer patient at the time of making the representation. Section 74 does not specify a particular format for rectification applications, allowing the Central Excise Officer to rectify mistakes upon being informed by the Assessee.

Given the pending decision on the rectification application, the Court directed the Respondent-Authority to decide on the representation dated 20 August 2016 within eight weeks. The Authority was instructed to consider the details provided in the Petition and clarify the nature of rectification required. The Court made the rule absolute in these terms, without imposing any costs on the parties involved.