9911796707
TMI Blog2020 (3) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on record, would amount to mistake apparent on the face of record, and hence, the failure of the CESTAT to take into consideration the plea of the appellant regarding extended time period, at numerous instances as delineated above, amounts to mistake apparent on the face of record. The CESTAT, while dismissing the application for rectification of mistake, has gravely erred in failing to take note of the same, despite making a note of the argument by the counsel for the applicant therein, that the plea invoking extended period has been iterated more than once in the order of the Adjudicating Authority. In such a circumstance, we can not uphold the impugned order and thus, the impugned order is set aside - appeal allowed - Matter restored before CESTAT - decided in favor of appellant. - SERTA 21/2019 - - - Dated:- 28-2-2020 - CHIEF JUSTICE MR. C. HARI SHANKAR J. Appellant Through: Mr. Sumit Wadhwa, Adv. Respondent Through: Mr. Amit Bansal, SSC with Mr. Aman Rewaria and Ms. Vipasha Mishra, Advs. JUDGMENT 1. This appeal has been preferred by the Indian Institute of Planning and Management, under section 83 of the Finance Act, 1994 read with section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reason that the courses being run lead to a Degree by the Foreign University but the demand was restricted to normal time limit. The reason cited in the order for such restriction is the retrospective amendment carried out by the Finance Act, 2010 in the definition of Section 65 (27) wherein an Explanation was inserted w.e.f. 01/07/2003. The Explanation is relevant only in respect of a Commercial Training or Coaching Centre which is registered as an Organization carrying out activity without profit motive. In the facts of the present case this aspect of IIPM is not in debate. This plea has neither been taken before the Adjudicating Authority nor before us. Consequently, we are of the view that the case of M/s Unitech Southcity Educational Charitable Trust and others is distinguishable to this extent from the facts of the present case. 15. It is on record that IIPM neither took registration nor registered themselves with Department up to 22/07/2005. On the said day the registration was taken only at Bangalore even though IIPM has Institutes in many other places. They also did not pay any Service Tax or file ST-3 Returns even though the tax on Commercial T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this case that the appellant was a Society registered under the Society Registration Act, 1860 and were availing the exemption under Section 10(23c) of the Income Tax Act. We have considered the arguments advanced by both sides on this issue. The decision of the Tribunal not to extend the benefit of bonafide belief in the lines of the decision in case of M/s Unitech has been taken after due deliberation and consideration of the entire record of the case. If the appellant is aggrieved with such finding, the right course of action would to be to challenge the order in the appropriate appellate forum. 9. We note that the scope of the rectification of the mistakes application is very limited. Only mistakes which are apparent on the face of the record and which do not require long drawn process of arguments by both sides, may be rectified. It is well settled law that applicant cannot seek review of the order in the guise of rectification of mistakes. This view finds support in the decision of Hon'ble Supreme Court in case of Commissioner of Central Excise Kolkata vs. ASCU Ltd. reported in [2003(151) ELT (481) (SC)]. Further, such views are to be found in the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingand Management; that IIPM teaches Planning and entrepreneurship course for self employment though the students accept employment in other organizations through campus interview organizedby IIPM and thus IIPM claimed that their courses are vocational courses. In that Letter IIPM further stated that IIPM have been granted necessary exemption under Sec. 10 (23) (c) of the Income Tax Act, 1961; that IIPM is neither a commercial training center nor a commercial coaching center; that IIPM not assessable under Service Tax; that IIPM enjoys a national as well as International reputation and is widely regarded as one of the foremost educational institutes in the country as on date; that the issues whether IIPM is liable to pay Service Tax is yet to be adjudicated upon. In their letter dt. 05/09/2005, IIPM categorically stated that they do not have any course affirmation with any Universities/ approval form AICTE. 3. Show cause notice 7.5 16 Moreover in the letter dt. 25/7/2005 of M/s AMARCHAND MANGALDAS SURESH SHROFF CO, COUNSEL for IIPM, (enclosed along with IIPM letter dt. 05/9/2005 -stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitute registered Under the Societies' Registration Act, 1860 to impart training and research on Techno Economic and Socio-Economic Planning and Management; that IIPM teaches Planning and entrepreneurship course for self-employment, though the students accept employment in other Organizations through campus interview organized by IIPM and thus IIPM claimed that their courses are vocational courses. In that Letter IIPM further stated that IIPM have been granted necessary exemption under Sec. 10 (23) (c) of the Income Tax Act, 1961 ; that IIPM is neither a commercial training center nor a commercial coaching center; that IIPM not assessable under Service Tax; that IIPM enjoys a national as well as international reputation and is widely regarded as one of the foremost educational institutes in the country as on date; that the issues whether IIPM is liable to pay Service Tax is yet to be adjudicated upon. In their letter dt. 05/09/2005, IIPM categorically stated that they do not have any course affirmation with any Universities/ approval form AICTE. 8. Order-in-Original dt. 24.01.2012 7.4 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Noticee is a society registered under the Societies Registration Act, 1860 having branch offices at several locations and Head Office in New Delhi. 12. Order-in-Original dt. 24.01.2012 Viii 66 That the Noticee is a society registered under the Societies Registration Act, 1860 and is conducting private courses. The notice was established in 1973 as non-profit making educational institute under the said Act. 14. Arguing per contra, Mr. Amit Bansal, learned Senior Standing counsel for the respondent, vehemently contends that the scope of rectification of mistake application is limited, and thus, the impugned order is not erroneous. 15. What falls before us, for our consideration is whether the CESTAT suffered from any error apparent on face of record in light of the contention of the appellant that it had on numerous instances invoked the plea of the extended period, as enumerated above. 16. At this juncture, the judgment of the Honorable Supreme Court in , Commissioner of Central Excise, Mumbai v. Bharat Bijlee Ltd. 2006 (198) E.L.T. 489 (SC) is relevant, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
