2018 (11) TMI 1296 - AT - Service Tax

Rectification of mistake - mistake apparent from record or not - invocation of extended period of limitation - The show cause notices in all these matters were issued prior to 10th May, 2013 and the amendment by way of sub-Section (2a) of Section 73 of the Act came into effect post 10th May, 2013. Held that - The rectification of the order is available only when error apparent on record occurs. Basically it can be typographical, arithmetical or calculation error. In addition, the term may extend to errors as that of skipping an important fact or ignorance of settled legal principal. If a party is aggrieved of the opinion so formed in the order, the remedy lies in challenging the same before the higher forum. Difference of opinion of adjudicating authority than that of the aggrieved party cannot be called as error apparent on record - In the name of ROM, review of appeal is not permissible. ROM have no merits and is dismissed.

Summary

Issues involved:
Rectification of order based on alleged error apparent on record regarding the invocation of extended period of limitation for demand of service tax and retrospective effect of amendment to Section 35F of Finance Act, 1944.

Analysis:

1. Rectification of Order based on Alleged Error Apparent on Record:
The appellants sought rectification in the final order dated 11th December, 2017, arguing that the Tribunal erred in not invoking the extended period of limitation for demand of service tax. The appellants referenced a case law from the Hon’ble Supreme Court to support their claim. However, the Departmental Representative contended that there was no error apparent on the record, and the order provided clear reasons for interpreting the case law to give retrospective effect to the amendments. The Tribunal emphasized that rectification is only available for typographical, arithmetical, or calculation errors, and not for differences of opinion between parties. The Tribunal cited a Supreme Court case to support the principle that what cannot be done directly is not permissible to be done indirectly. Ultimately, the Tribunal dismissed the rectification applications, stating that the remedy for challenging the order lies in appealing to a higher forum.

2. Retrospective Effect of Amendment to Section 35F of Finance Act, 1944:
The appellants contended that the Tribunal did not properly apply the law settled by the Hon’ble Supreme Court in a specific case. However, the Tribunal clarified that the amendment to Section 73, which occurred post May 2013, did not form the basis for the demand of service tax. The Tribunal explained that the amendment was procedural and did not adversely affect the vested rights of the party, allowing for retrospective effect. The Tribunal concluded that the opinion formed by the Tribunal was not an error apparent on record, and the allegations in the application were not sustainable. The Tribunal emphasized that the proper remedy for the appellant's grievance, if any, would be to appeal to a higher forum rather than seeking rectification. Consequently, the applications were dismissed.

In summary, the judgment delves into the nuances of rectification based on alleged errors apparent on record and the retrospective effect of amendments to the Finance Act, 1944. The Tribunal emphasized the limited scope of rectification and the need for a higher forum for challenging opinions diverging from a party's stance. The analysis provides a detailed examination of the arguments presented by both parties and the Tribunal's rationale for dismissing the rectification applications.