2019 (2) TMI 864 - AT - Service Tax

Rectification of mistake - Composite Contracts/Works Contracts - error apparent on the face of record - Held that - As far as the rectification prayed with respect to the name of the respondent, it is observed that respondent is directed to be recorded as M/s. L.R. Sharma and Co. by Hon ble Delhi High Court 2018 (5) TMI 1062 - CESTAT NEW DELHI . It is further perused that in the prayer to the impugned appeal, the appellant Department has also mentioned the assessee as M/s. L.R. Sharma & Co. Resultantly, the name of the respondent assessee in the impugned order as L.R. Sharma is a typographical error apparent on record and can definitely be taken care of in view of Rule 41 of CESTAT Rules. The request to this aspect is hereby accepted. Necessary change be made in the title of the impugned order. Rectification of error in respect of determination of nature of works contract - Held that - The Hon ble Apex Court in Larsen and Toubro 2015 (8) TMI 749 - SUPREME COURT case also has discussed about the importance of bifurcation of the work. Resultantly, there is no error apparent on record of the impugned final order as is alleged, the order has no where touched the merits of the case. The adjudication is kept pending till the relevant documents to appreciate the applicability of the case law settled by Hon ble Apex Court to the given facts and circumstances is obtained on record and are considered first by the adjudicating authority below. It is too immature to take a call about the allegation as that of committing judicial indiscipline as is alleged by the applicant-respondent. Above all, the debatable issue cannot be considered under the garb of the rectification. Seen from any angle, this grievance of appellant is not sustainable. The application in hand is partly allowed permitting the necessary correction in the title of the appeal in the impugned Final Order.

Summary

Issues involved:
1. Rectification of mistake apparent on record regarding the name of the respondent.
2. Alleged error in ignoring settled law regarding taxation of composite contracts.

Analysis:

Issue 1: Rectification of mistake apparent on record regarding the name of the respondent
The application under Rule 41 read with Rule 31 A of CESTAT Rules, 1982 sought rectification of a mistake in Final Order No.51815/2018 dated 17th May, 2018, where the respondent was mentioned as L.R. Sharma instead of M/s. L.R. Sharma & Co. The Hon'ble High Court had directed the respondent to be recorded as M/s. L.R. Sharma and Co. in a previous order. The Tribunal acknowledged this typographical error and allowed the rectification, directing the necessary change in the title of the impugned order.

Issue 2: Alleged error in ignoring settled law regarding taxation of composite contracts
The applicant contended that the Tribunal erred in remanding the matter for a de novo trial, ignoring settled law regarding taxation of composite contracts. The applicant cited various case laws to support the argument that any order passed without considering relevant decisions of higher courts constitutes an error apparent on record. The Tribunal analyzed the legal principles laid down by the Hon'ble Supreme Court in the case of CCE, Kerala vs. Larsen & Toubro Ltd., emphasizing the importance of segregating service elements from composite works contracts for taxation purposes. The Tribunal noted that the contracts in question were not provided for examination, and remanded the matter to consider the relevant documents to assess the applicability of the settled case law. The Tribunal concluded that there was no error apparent on record in the impugned final order, as it did not delve into the merits of the case but rather highlighted the need for further examination based on relevant documentation.

In conclusion, the Tribunal partly allowed the application, permitting the necessary correction in the title of the appeal in the impugned Final Order. The judgment provided a detailed analysis of both issues raised by the parties, emphasizing the importance of adhering to legal principles and considering relevant case laws in tax matters involving composite contracts.