2020 (2) TMI 445 - AT - Service Tax

Rectification of mistake - section 35C of Central Excise Act, 1944 - contention of the Learned Counsel that the order of the Tribunal has erred in recording that only four appeals were disposed off and that four should be read as five , in conformity with the narration of the appeals on the title page, is tenable - HELD THAT - Any decision on our part on the correctness of the de novo order of the original authority or any direction to handle it any other manner would circumvent the appellate hierarchy and predispose the first appellate authority one way or the other. We, therefore, limit ourselves to the error noted by us in the order and amend the sentence to read as We take up five appeals of M/s Kasegaon Education Society for disposal by this common order. Application disposed off.

Summary

Issues:
Rectification of mistake in the order under section 35C of Central Excise Act, 1944 as applicable to Finance Act, 1994 regarding the disposal of five appeals filed by M/s Kasegaon Education Society against orders-in-appeal.

Analysis:
The applications sought rectification of a mistake in the order dated 12th June 2017, which decided five appeals filed by M/s Kasegaon Education Society against orders-in-appeal. It was contended that the order erroneously restricted the decision to four appeals instead of all five. The demand for tax was based on liability arising from section 66A of the Finance Act, 1994. Despite referencing earlier decisions, the order did not provide a finding following these precedents. The original authority disposed of the notices in fresh proceedings without considering the pending applications for rectification, which had implications in the disposal. Appeals against the de novo proceedings, alleged to be non-compliant with the Tribunal's direction to apply settled law on tax liability, were pending before the first appellate authority.

The Tribunal acknowledged the error in recording that only four appeals were disposed of, whereas all five appeals should have been considered for disposal. The denovo adjudication by the original authority was limited to four disputes, while all five were referred back for disposal in accordance with the direction. The Tribunal refrained from making a decision on the correctness of the de novo order to avoid circumventing the appellate hierarchy and prejudicing the first appellate authority. Instead, the Tribunal amended the sentence to include all five appeals of M/s Kasegaon Education Society for disposal in the common order. Finally, the applications seeking rectification were disposed of during the proceedings.