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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 ..... as made an attempt to canvass this point by drawing attention to various documents for 2 hours itself indicates that such error cannot be construed as a mistake apparent from the record. It would amount to reconsideration of the disputed facts on record. This is a disputed question of fact whereby the contention of the petitioner that they have received full consideration in foreign exchange has been rejected by the Tribunal and same is also disputed in show cause notice. Such a disputed question of fact cannot constitute mistake apparent from record - 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 - the Tribunal was not wrong in rejecting the rectification application on this error. 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 in BOARD OF CONTROL FOR CRICKET IN INDIA VERSUS COMMISSIONER OF SERVICE TAX-II, MUMBAI (VICE-VERSA) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VOLKART BROTHERS AND OTHERS [ 1971 (8) TMI 3 - SUPREME COURT ] wherein the Supreme Court held that a debatable point of law cannot constitute a mistake apparent from the record on which two opinions are conceivable, it cannot be said to be an error apparent on the face of the record. In the present case as observed, none of the errors agitated constitutes mistake apparent from record. The Tribunal s order rejecting application of the petitioner to rectify mistake apparent from record in its order cannot be faulted - Petition dismissed. - G. S. KULKARNI JITENDRA JAIN, JJ. For the Petitioner : Mr. Sriram Sridharan. For the Respondent : Mr. Jitendra Mishra a/w Mr. Satyaprakash Sharma. ORAL JUDGMENT (PER JITENDRA JAIN, J.) :- Rule. Rule made returnable forthwith. Mr. Mishra waives service on behalf of the respondent. By consent of the parties heard finally. 2. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks following reliefs :- (a) that this Hon ble Court be pleased to issue a Writ of Certiorari or any other Writ, order or direction under Article 226 of the Constitution of India to quash and set aside the impugned Order dated 02.12.2019 (E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been rendered in India and therefore, does not qualify as Export of Services. The Tribunal also analyzed the period of dispute under consideration between pre 27th February 2010 and post 27th February 2010, on which date, the Export of Services Rules, 2005 were amended. 5. Being aggrieved by the Tribunal s order, the petitioner made an application, under Section 35C(2) of the Central Excise Act as made applicable to the Service Tax by virtue of Section 86(7) of the Finance Act, 1994, for rectification of mistake in the order dated 10th December 2018. On 2nd December 2019, Tribunal dismissed the rectification application holding that the petitioner is seeking to review the findings recorded in the original order which cannot be the subject matter of rectification of mistake. 6. Being aggrieved by the above said order of the Tribunal dated 2nd December 2019, the petitioner has approached this Court by filing a writ petition under Article 226 of the Constitution of India to contend that the Tribunal erred in holding that there is no mistake apparent on record. 7. Heard learned counsel for the petitioner and the respondent. We have perused the records of the petition with the assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a consideration for the service provided by the appellant . In para 5, of the adjudication order, the mode of payment has been explained, and is reproduced in table below: (emphasis supplied) Invoice No. Amount in INR Date of Receipt Document No. Amount in INR Before TDS deduction After TDS deduction MSM-IPL-2011-12 dtd. 28.02.11 4983810769 07.03.11 SCSQ063001 2351690000 2116521000 30.06.11 IT36701106270984 280430770 252387693 29.09.11 IT3671109270985 2351690000 2116521000 4983810770 4485429693 30.06.11 IT36701106270984 280430770 252387693 Out of the total payments received payments mentioned on 30.06.11 and 07.03.11 has been received M/s. Sony Pictures Entertainment on behalf of MSM Singapore. The net amount after TDS deduction has been credited in the Appellant Bank Account with HDFC Bank. Further income of Rs. 34,64,40,768/- has been received from sub licensees M/s. WSG. It is admitted fact that appellant has themselves claimed benefit of export of service in respect of certain part of the income from media rights agreement. However they have not claimed the said benefit in respect of entire amount. This would be for the reason that entire income from media rights is not receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus in view of the discussions as above and the decisions referred we are of the view that benefit under Export of Service Rules, 2005 could not have been extended to the appellant, for the period prior to 27.02.2010. For the period after 27.02.2010, the said benefit has been extended to the appellant, to the extent they have shown that the payment against the said services was received in convertible foreign exchange. 10. We propose to deal with each of the errors separately. Before we proceed to examine the issues, it is apt to reproduce relevant provision of Section 35C(2) as made applicable to Finance Act, 1994 on powers of the Tribunal to rectify mistake apparent from record. 35C. Orders of Appellate Tribunal. (1) (2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Principal Commissioner of Central Excise or Commissioner of Central Excise or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittedly the claim for export was not claimed for the entire amount. The petitioner has not rebutted paragraph 7 of the show cause notice which is reproduced in Tribunal s order on this issue. The petitioner has not given a break up of the receipt in foreign exchange on the amount on which the claim was made. It is neither in the reply to the show cause notice nor before the Tribunal and therefore, the Tribunal in its order has accepted the said part of show cause notice that the petitioner has not given any explanation nor any documentation. (v) In our view, the submission of the petitioner that the Tribunal s finding that the petitioner has not received the entirety of the consideration in foreign exchange cannot be construed as a mistake apparent from the record. The fact that the petitioner has made an attempt to canvass this point by drawing attention to various documents for 2 hours itself indicates that such error cannot be construed as a mistake apparent from the record. It would amount to reconsideration of the disputed facts on record. In our view, this is a disputed question of fact whereby the contention of the petitioner that they have received full consideration in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of law is answered in favour of the petitioner, the Tribunal in the operative portion has not given any such finding. In paragraph 7.10 of the original order dated 10th December 2018 (which is reproduced hereinabove), the Tribunal has categorically held that post 27th February 2010, the petitioner has been given benefit of export, to the extent of payment received in convertible foreign exchange. In view thereof, the same cannot constitute a mistake apparent on record. 13. c) Error No. 3 :- 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. (i) With respect to error no. 3, the petitioner has contended that the decision cited before the Tribunal in case of Commissioner of Service Tax-VI vs. Balaji Telefilms Ltd. 2016 (43) STR 98 (Tri.-Mum) has been wrongly d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record see Sidhramappa Andannappa Manvi v. Commissioner of Income Tax, (1952) 21 ITR 333 (Bom.). 15. The ratio of the above referred judgment holds field even today. The said decision has been followed in decision of the Supreme Court in case of Commissioner of Central Excise, Belapur, Mumbai Vs. RDC Concrete (India) P. Ltd. 2011 (270) ELT 625 (SC). The relevant paragraph 16 reads thus :- 16. Upon perusal of both the orders viz. earlier order dated 4th November, 2008 and order dated 23rd November, 2009 passed in pursuance of the rectification application, we are of the view that the CESTAT exceeded its powers given to it under the provisions of Section 35C(2) of the Act. This Court has already laid down law in the case of T .S. Balram v. M/s. Volkart Brothers, 82 ITR 50 to the effect that a mistake apparent from the record cannot be something which can be established by a long drawn process of reasoning on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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