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TMI Blog2016 (1) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... granted by the Hon'ble High Court of Mumbai to apply for such appropriate clarification. 2. The appellant are engaged in setting up and operating centers for computer training. In the Order-in-Original pertaining to the period July 2003 to January 2004, it was held by the department that the services provided by the applicant are Franchisee Services under Section 65(105) (zze) of the Finance Act 1994. Therefore, the service tax demand was confirmed and penalty under Section 78 was imposed. The matter went up to the Tribunal who held in favour of Revenue. Being aggrieved the appellant filed an appeal before the Hon'ble Mumbai High Court which has been admitted vide High Court order dt.17.7.2008 on the substantial question of law as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not want to repeat arguments on merits before the Tribunal in later cases and only advanced their arguments on the issue of penalty. He stated that it was never the contention before the Tribunal in the case under consideration that they have accepted the issue on merits. He drew attention to their Appeal memo to the Tribunal in the present case where the issue has been contested at length on merits. He also submitted an affidavit from Shri Sushant Murthy Advocate who appeared for the appellant before the Tribunal clarifying this position. 5. The Ld. AR opposed the issue of a clarification by the Tribunal. He stated that there is no mistake apparent on record on the face of the Tribunal order dt. 26.3.2014. Further contended that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Even in respect of the second adjudication order, the Tribunal order dt. 12.3.2013 records that- "The learned Counsel for the appellant fairly submits that in the appellant's own case for the previous period, this Tribunal vide order reported in 2007 (7) STR 314 (Tri.-Mum) held that the services rendered by them qualifies as "franchise services" as defined under Section 65(47) of the Finance Act, 1994 and, therefore, he is not contesting the demand of Service Tax. As regards the imposition of penalty, the learned Counsel pleads that they were under bona fide belief that the services rendered by them do not come under the purview of "franchise service" and, therefore, imposition of penalty was not warranted". We are inclined to believe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that as the case had been decided on merits by the Tribunal in its first order dt. 29.11.2006, the appellant did not want to repeat the arguments on merits. The fact that they did contest on merits is evident from the appeal filed by them which gives detailed grounds for contesting the appeal on merits. Para 4 of the order is intended to state that, during the hearing their contention on merits were not sought to be repeated.
9. While making the above clarification, we may state that both Members who passed the Tribunal Order dt. 26.3.2014 have since retired. We have given a clarification on the basis of sequence of events and records to and secure the ends of justice.
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