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TMI Blog2017 (6) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... question of limitation also and give his findings on the submissions of various correspondences. The reference made in para 9 of the final order of the Tribunal, to penalty under Section 76 has no relevance. The proceedings before Original Authority did not result in imposition of any penalty under Section 76 and, hence, the reference to such penalty is an error apparent on record. As such, we hold para 9 of the final order is to be deleted. In the final order of the Tribunal. In para 7 of the order reference was made to Custom Department , we note that the same should be read as Department . The word Custom has to be deleted. ROM application allowed - necessary corrections to be made. - Service Tax Appeal No.02 of 2010 - ST/A/53367/2017-CU[DB] - Dated:- 19-5-2017 - Shri S.K. Mohanty, Member (Judicial) And Shri B. Ravichandran, Member (Technical) S/Shri J.K. Mittal and Rajveer Singh, Advocates for the appellant. S/Shri Amresh Jain, Govind Dixit and Sanjay Jain, Authorized Representative (DRs) for the Respondent. ORDER Per. S.K. Mohanty The appellants are engaged in the business of operating airlines and are providing services of tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd and requested for rectification of the same. The miscellaneous application was heard and the Tribunal passed miscellaneous order No. 50020 of 2017 dated 13/01/2017. In the said order, the Tribunal recorded as below :- 4. We have heard both the sides and perused the application alongwith the impugned order and appeal records. Admittedly there are certain errors which are apparent on record in the final order now impugned. Certain illustrative examples as already noted above are clear. However, there are various other points which the learned Counsel submits will also fall under the category of apparent errors which requires closer scrutiny. However, suffice it to say that the final order of the Tribunal requires corrections as it does contain various errors apparent on record. The scope of all the errors which the applicant contends are amenable for rectification, however, requires closer scrutiny. We are aware that under the guise of miscellaneous application for rectification of error apparent on record, the Tribunal cannot assume the power of review. Keeping this legal position in mind and also having noticed apparent errors on record, the extent of same to be examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifically the various recorded correspondence between appellants and the Department resulted in the conclusion by the Tribunal, on the impugned original order. By reproducing some of the findings of the Original Authority, an error apparent on record occurred. When date chart of correspondence submitted by the appellant is considered, it will be clear that there is no basis to invoke extended period of demand ; (h) Board s Circular dated 18/09/2007 was referred to in the final order by the Tribunal. This is not part of the records. The said Circular was not made available to the appellant at any time of the proceedings. 5. The learned AR submitted that first of all, the Tribunal cannot go into detailed analysis of the merits of the case as there is no power vested with the Tribunal to review its own order. The final order dated 08/07/2016 cannot be subjected to a detailed review in the present proceedings. The miscellaneous application by the appellant is only for rectification of errors apparent on record. The Tribunal has to restrict itself within the legal powers of such rectification of apparent errors. While apparent errors relating to arithmetical calculation or ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udication. Since, re-quantification of taxable value has to be done based on supporting documents submitted by the appellant, we are of the view that all issues are to be kept open for correct computation of taxable value in the denovo proceedings. In other words, instead of restricting only to the totaling mistake, the Original Authority should also check up whether the quantification of taxable value has been arrived on correct basis of all the details submitted by the appellant ; (c) we have noticed that in the appeal as well as in the miscellaneous application and also during the course of arguments, the appellants strongly emphasized on the question of time bar with reference to the proceedings initiated against them. The final order of the Tribunal concluded that extended period is invokable in the present case. However, we note that the said finding is based on the findings of the Original Authority in para 2, 3, 4 of the impugned original order. The Tribunal, based its finding mostly on the facts as recorded in the said paragraphs of the original order. In this connection, we note the chronology of various developments during the material period, as submitted by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no directions/ clarification from the department levy of service tax on other than the basic fare, despite knowledge of the facts that since airlines are paying service tax on basic fare only. 10 17.06.2008 Meeting held in the Service Tax Commissionerate, wherein, the Appellant explained and clarified the issues/ discrepancies related to ST-3 return. 11 03.07.2008 Along with letter dated 03.07.2008, the Appellant submitted the abstract details of tickets on paid basis. 12 01.04.2008 It has been admitted by the Department in the Show Cause Notice dated 01.08.2008 particularly in the para 4.1 that the Appellant has submitted the required details in the format as desired by the Department in CD and also time to time visited the Department and replied to their letter also. 13 02.04.2008 With letter dated 02.04.2009, on insistence of the Department, the Appellant again submitted the copy of return filed on 25.10.2006 for the period from May 2006 to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king in India for international journey by air is a service, taxed in terms of Section 65 (105) (zzzo) of the Finance Act, 1994. The said tax entry talks about passenger embarking in India for international journey. If the ticket is issued for a round trip/return journey also then apparently it is a total value of the such service which is to be considered for taxation. Board s Circular dated 17/10/2006 also clarified to this extend. The service is a continuous one starting from embarking of passenger in India. We find no merit in the plea of the appellant for exclusion of a part value of the ticket for tax liability. 10. We find that the reference made in para 9 of the final order of the Tribunal, to penalty under Section 76 has no relevance. The proceedings before Original Authority did not result in imposition of any penalty under Section 76 and, hence, the reference to such penalty is an error apparent on record. As such, we hold para 9 of the final order is to be deleted. 11. One more miscellaneous error was pointed out by the appellant in the final order of the Tribunal. In para 7 of the order reference was made to Custom Department , we note that the same should be re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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