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TMI Blog2023 (8) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... of India to allow the Rectification Application No. 85434, 85436, 85437, 85348/19 filed by the Petitioner before the Customs, Excise and Service Tax Appellate Tribunal and to grant the Petitioner the consequential reliefs thereof; (c) that this Hon'ble Court be pleased to issue a Writ in the nature of Mandamus or any other Writ, order or direction under Article 226 of the Constitution of India directing the Respondent No. 2 to re-adjudicate the Rectification Application Nos. 85434, 85436, 85437, 85348/19 as per law." 3. Brief facts in the present petition are as under :- The petitioner is a society registered under the Tamil Nadu Societies Registration Act, 1975 and is also registered under the Finance Act, 1994 (Service Tax). On 21st January 2008, the petitioner entered into an agreement, for grant of Media Rights, with MSM Satellite (Singapore) Pte. Ltd. and World Sport Group (India) Pvt. Ltd. for telecast of Indian Premier League (IPL) Matches. The said agreement was superseded by an agreement dated 25th March 2009. On 14th October 2009, four show cause notices were issued for the periods between 2007-08 and 2011-12. The issue raised in the show cause notices were whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted a clear mistake apparent on record by holding that the Petitioner had not received the entirety of the consideration in foreign exchange; ii. Error No. 2: For FY 2010-11, the CESTAT answered the question of law in favour of the Petitioner, but erred in not allowing the Petitioner's Appeal for the period 2010-11 in the operative portion of the Final Order dated 10.12.2018; iii. Error No. 3: The Petitioner had cited the decision of the CESTAT in Commissioner of Service Tax-VI v. Balaji Telefilms Ltd. (2016 43 STR 98 (Tri-Mum)) in support of its case on merits. This was distinguished by the CESTAT on the sole premise that the feed in the present matter did not leave India whereas the feed in the Balaji Telefilms case left India prior to returning to India. This is a clear factual error since the Petitioner's feed undoubtedly does leave India." 9. We have perused the original order of the Tribunal dated 10th December 2018 which was subject matter of rectification proceedings. On perusal of the said order, we are of the view that the Tribunal has extensively dealt with the issues raised in rectification application in paragraphs 7.8, 7.9 and 7.10 of the original order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is quite evident in respect of the payments received from M/s. MSM Singapore demand has been made in respect of those amounts which are not in convertible foreign exchange and cannot treated as export of service. The said para of Show Cause Notice dated 13.03.2013 is reproduced below:- "7. On scrutiny of ST-3 Returns for 2011-12 filed under 'Commercial use and Exploitation of events', it is observed that BCCI has claimed amount received against export of service of Rs. 416,98,88,398/- (i.e. Rs. 175,46,33,398/- plus Rs. 241,52,55,000/-). Under Franchisee Services BCCI has not claimed any amount received against export of service. Department has already issued various SCNs under 'franchisee services' on the issue as mentioned in Para-03 above which are pending for adjudication. BCCI has claimed export of service on media right income in ST-3 for 2011-12 for Rs. 416,98,88,398/-. The representative of BCCI has clarified that out of the said amount, the amount of Rs. 256,83,00,000/- pertains to ESPN Singapore and remaining amount of Rs. 160,15,88,396/- pertains to MSM Singapore. However, on going through the balance-sheet for 2011-12, it was noticed that out of the total export in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. 11. a) Error No. 1 :- 1. Error No. 1: For FY 2011-12, the CESTAT has committed a clear mistake apparent on record by holding that the Petitioner had not received the entirety of the consideration in foreign exchange. (i) The petitioner contended that for the financial year 2011-12, the Tribunal has committed a clear mistake apparent on record by holding that the petitioner has not received the entirety of the consideration in foreign exchange. The respondent has supported the Tribunal's impugned order and contended that this is not a mistake apparent from record. (ii) With respect to error no. 1, the Tribunal in paragraph 7.8 & 7.9 of its original order dated 10th December 2018 (reproduced above), has given a finding that the petitioner had themselves claimed benefit of export of service in respect of certain part of the income from media rights agreement. However, they had not claimed the said benefit in respect of the entire amount since the entire amount is not received in convertible foreign exchange. (iii) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice. Such a disputed question of fact cannot constitute mistake apparent from record. (vi) Therefore, in our view, the Tribunal was justified in observing that what is sought to be attempted by the petitioner in the rectification application is a review of the order which cannot be done under Section 35C(2) of the Central Excise Act as applicable to the Service tax. In this connection, it is relevant to reproduce paragraph 4.7 of the Tribunal's order rejecting rectification application dated 2nd December 2019 which reads thus :- "4.7 From perusal of the grounds raised in the application made by the applicants are seeking to review the findings recorded by us in our own order. It is not the case of the applicant that the certain facts or arguments have not been considered by the tribunal but the case made for recall of the order, is that the findings recorded are erroneous. In our view, such recall of the order to render fresh findings in the matter is not within the scope of the rectification as envisages under Section 35C(2). An erroneous finding of fact or in law needs to be challenged by way of the appeal as provided in law and cannot be the reason for recall and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istake apparent on record. On a query posed to the petitioner as to whether wrong distinction of a particular decision made by the Tribunal can at all constitute a mistake apparent on record, the petitioner was fair to contend that it cannot be the case. In any view of the matter, whether the decision of Balaji Telefilms (supra) has been correctly appreciated by the Tribunal or not, would require debate and which certainly cannot constitute a mistake apparent from the record. The Tribunal in its original order dated 10th December 2018 in paragraph 7.4 have dealt with this decision and observed that it is distinguishable on facts. Therefore, in our view, the Tribunal was justified in rejecting the rectification application filed by the petitioner with respect to error no. 3 since same would not amount to 'mistake apparent from record.' 14. Section 35C (2) read with Section 83 of the Finance Act, 1994 empowers the Tribunal to rectify the order only on mistakes which are apparent from record. The phrase 'mistake apparent from record' has been explained by the Supreme Court as far back as in the year 1971 in case of T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay Vs. Volka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly be two opinions. It has been also held that a decision on a debatable point of law cannot be a mistake apparent from the record. If one looks at the subsequent order passed by the CESTAT in pursuance of the rectification application, it is very clear that the CESTAT re-appreciated the evidence and came to a different conclusion than the earlier one. At an earlier point of time, the CESTAT came to a conclusion that the company to which the respondent-assessee sold its goods was an interconnected company. In the circumstances, according to the CESTAT, the decision of the department to appoint a Cost Accountant to ascertain value of the goods manufactured by the asessee was considered to be just and proper. However, after considering the submissions made in pursuance of the rectification application, the CESTAT came to a different conclusion to the effect that the asessee company and the buyer of the goods were not inter-connected companies. Different conclusions were arrived at by the CESTAT because it reappreciated the evidence in relation to common directors among the companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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