2020 (1) TMI 505 - HC - Service Tax

Rectification of mistake - furnishing of copy of the multimodal certificate issued by the Director-General of Shipping - allegation of mistake on the part of its consultant in enclosing the original certificate only for the period commencing from September 2014 - HELD THAT - The fact remains that the petitioner has given partial relief on the strength of the renewal is a certificate for the period after September 2014. Since there is a bona fide mistake and but for the non-filing of the original certificate of registration issued to the petitioner for the earlier period the demand would not have been confirmed. I m therefore convinced that the petitioner is entitled to the relief. Merely because renewal certificate for the earlier period was not produced earlier cannot mean that the order cannot be rectified under section 74 of the Finance Act 1994. Ultimately it is the duty of the respondent to pass a fair order and it is no part of the duty to deny the benefit which was legitimately available to the petitioner if materials were brought to the knowledge of the respondent though subsequently. The writ petition is allowed with liberty is given to the respondent to call upon the petitioner to pay the tax for services if any which are outside the purview of the Circular No.197/7/2016-ST dated 12.8.2016 issued by the Department of Revenue after due notice to the petitioner.

Issues:
1. Rectification of mistake in the impugned Order-in-Original
2. Justification of rejecting the application for rectification
3. Liability to pay service tax under Mega Exemption Notification
4. Submission of correct certificate by the petitioner's consultant
5. Rejection of rectification application by the respondent
6. Availability of alternate remedy through appeal
7. Confirmation of demand for service tax amount
8. Validity of the order passed by the respondent
9. Entitlement to relief due to a bona fide mistake
10. Duty of the respondent to pass a fair order

Issue-wise Detailed Analysis:

1. The primary issue in this case is the rectification of mistakes in the Order-in-Original passed by the respondent. The petitioner sought rectification based on the submission of correct certificates to support their claim as a multimodal transport service provider.

2. The rejection of the application for rectification by the respondent was based on the failure of the petitioner's consultant to provide the original certificate within the specified timeframe. The respondent argued that there was no error apparent on the face of the record to warrant rectification.

3. The question of liability to pay service tax arose concerning the service provided by the petitioner, which was neither in the negative list nor exempted under the Mega Exemption Notification. The petitioner claimed that their service fell under the exemption as per Circular No. 197/7/2016-SD.

4. The petitioner's consultant submitted a renewal certificate effective from 25.6.2014, leading to a partial drop in the demand for service tax. However, the failure to provide the original certificate for the earlier period resulted in the confirmation of the demand for that specific timeframe.

5. The rejection of the rectification application was based on the consultant's failure to furnish the original certificate, as required by the respondent. The court considered this a bona fide mistake and ruled in favor of the petitioner's entitlement to relief.

6. The respondent argued that the petitioner had an alternate remedy through an appeal against the impugned orders, suggesting that the orders should be sustained based on the availability of such a remedy.

7. The confirmation of the demand for service tax amount was detailed in the Order-in-Original, specifying the periods for which the demand was confirmed and dropped based on the certificates provided by the petitioner.

8. The validity of the order passed by the respondent was challenged by the petitioner, emphasizing the availability of the registration certificate as a multimodal transporter since 2005, which was not filed before the respondent.

9. The court acknowledged the petitioner's partial relief based on the renewal certificate but emphasized the importance of filing the original certificate for the earlier period to avoid confirmation of the demand, highlighting the bona fide nature of the mistake.

10. The judgment concluded by quashing the impugned orders and allowing the writ petition, with instructions for the respondent to assess any tax liabilities outside the purview of the circular within three months. The court emphasized the duty of the respondent to pass a fair order and provide relief when warranted by the circumstances.

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