2018 (9) TMI 1508 - AT - Service Tax

Service of Order - case of appellant is that the Order-In-Original No.199/ADC/ST/LKO/2015-16 dated 29.03.2016 was never passed in respect of them and was never served upon them - Held that - It was a clerical mistake at some stage where same order has been assigned two numbers 199 and 202. The Order-In-Original assigned No. 199/ADC/ST/LKO/2015-16 dated 29.03.2016 was marked to the department and Order-In-Original assigned No.202 was addressed to the appellant and because of such clerical mistake the whole confusion has arisen - Since the matter arising out of said show cause notice dated 20.10.2014 has reached finality through Order-In-Appeal dated 31.07.2017, the impugned Order-In-Appeal is infructuous - the impugned Order-In-Appeal is set aside - appeal allowed.

Summary

Issues:
- Discrepancy in order numbers
- Imposition of penalty under Section 78 of the Finance Act, 1994
- Finality of the matter post previous Order-In-Appeal

Analysis:
1. Discrepancy in order numbers:
The appeal stemmed from a confusion regarding two Order-In-Original numbers, 199 and 202, both related to the same show cause notice dated 20.10.2014. The Order-In-Original No. 199/ADC/ST/LKO/2015-16 was mistakenly marked to the department, while No. 202 was addressed to the appellant. This clerical error led to the imposition of penalties and subsequent appeals. The confusion was clarified upon examination, attributing the issue to a clerical mistake in assigning order numbers.

2. Imposition of penalty under Section 78 of the Finance Act, 1994:
The Original Authority confirmed a demand of &8377; 7,25,041/- against the appellant, along with a penalty of &8377; 74,801/- under Section 78 of the Finance Act, 1994. Subsequently, through various appeal stages, the differential service tax and equal penalty were sustained, while other penalties were set aside. In the final appeal, the appellant contested the imposition of the penalty, highlighting discrepancies in the served orders and the subsequent confusion caused by clerical errors.

3. Finality of the matter post previous Order-In-Appeal:
The Commissioner (Appeals) modified the initial Order-In-Original, sustaining a differential service tax and penalty. However, neither party appealed against this modification. The subsequent Order-In-Appeal dated 30.11.2017 imposed a penalty of &8377; 7,08,969/- under Section 78 of the Finance Act, 1994, against the appellant. Upon review, it was established that the matter had already reached finality through the previous Order-In-Appeal dated 31.07.2017. As a result, the impugned Order-In-Appeal was deemed infructuous, leading to its set aside and allowing the appeal in favor of the appellant.