Like the Central Excise, applications for rectification of mistakes before Tribunal are maintainable under Service tax as well

[Bimal jain]

Dear Professional Colleague,

Like the Central Excise, applications for rectification of mistakes before Tribunal are maintainable under Service tax as well

We are sharing with you an important judgement of the Hon’ble High Court, Madras, in the case of Fairline Worldwide Express Vs. Commissioner of Central Excise, Pondicherry [2014 (9) TMI 415 - Madras High Court] on following issue:

Issue:

Whether applications for rectification of mistakes before Tribunal are maintainable under Service tax?

Facts and background:

Fairline Worldwide Express (“the Appellant”) is a Courier agency registered under Service tax engaged in providing services in relation to delivery of documents outside India and claimed the same as an export of service. However, the Lower Authority denied the contentions of the Appellant and confirmed the demand along with imposition of penalty. On appeal being filed to the Commissioner (Appeals), the Commissioner (Appeals) decided the matter in favour of the Appellant.

However, as per the direction of the Committee of Commissioners, the said Order of the Commissioner (Appeals) was appealed by the Department before the Hon’ble CESTAT. The Hon’ble CESTAT by Order dated February 19, 2010, allowed the appeal setting aside the Order of the Commissioner (Appeals). The Hon’ble Tribunal while deciding the matter in favour of the Revenue relied upon provisions of Rule 3(2) of erstwhile Export of Services Rules, 2005 (“the Export Rules”), as amended from June 16, 2005.

Being aggrieved, the Appellant filled an Miscellaneous petition under Section 35C(2) of the Central Excise Act, 1944 (“the Excise Act”), for rectification of the mistake, in terms of Section 83 of the Finance Act, 1994 (“the Finance Act”) on the ground that the Order of Hon’ble Tribunal was based on the amendment Act, which came into effect only from June 16, 2005 whereas the period of demand was from March 15, 2005 to June 15, 2005 and therefore, there was an error apparent on record. The Hon’ble Tribunal dismissed the petition on the ground that there is no statutory provision for the Tribunal to entertain the petition for rectification in case of Service tax appeals. Being aggrieved, the Appellant filed an appeal before the Hon’ble High Court of Madras.

Held:

The Hon’ble High Court of Madras held that in view of Section 83 of the Finance Act, Section 35C of Excise Act dealing with filing of applications for rectification of mistakes before Tribunal, is applicable to Service tax also. Hence, the finding of the Tribunal that there is no statutory provision for filing application for rectification in case of Service tax appeals is unsustainable. Accordingly, the matter was remanded back to the Tribunal for disposal of application on merits.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks and Best Regards,

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

Flat No. 34B, Ground Floor, Pocket - 1,

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