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2015 (9) TMI 1387 - CESTAT MUMBAI

2015 (9) TMI 1387 - CESTAT MUMBAI - TMI - Supplementary questions - Matter was already referred to larger bench in [2015 (6) TMI 695 - CESTAT MUMBAI] - matter to be placed before Third Member on the Supplementary questions:-

(i) In the facts and circumstances, whether the services have been received by the appellant-assessee beyond the Indian Territory and hence, not liable to Service Tax as held by Member (Judicial)

or

Whether the services have been received w .....

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ted:- 10-9-2015 - Anil Choudhary, Member (J) And P S Pruthi, Member (T) For the Appellant : Shri A R Krishnan, Adv For the Respondent : Shri K M Mondal, Spl. Counsel ORDER Per Anil Choudhary Applicant/Appellant have filed the present modification application seeking rectification of mistake in Order No. M/2599/15/STB dated 5/6/2015 in Appeal No. ST/672/11, wherein there was different of opinion and the same was referred for opinion of the Third Member. 2. Heard the parties. 3. The learned Counse .....

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.2006 on arrangement fees would not be payable. (iii) Whether the benefit of Section 80 is not available and hence penalty under Section 76 and 78 are imposable or whether the benefit of Section 80 is available and accordingly the penalties under Section 76 and 78 are not imposable. 3.1 It is further contended that in case the learned third Member does not appreciate the view taken by learned Judicial member, then there may be mis-carriage of justice, as learned third-member will not have the be .....

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eferred by Division bench was whether the appeals are required to be rejected as held by learned Member (Technical) or whether the appeals are required to be allowed as held by the learned Vice-President (Judicial Member). The Hon'ble High Court took notice of the provisions of section 129C of the Customs Act, 1962, and observed that the Legislative intent is to ensure that the appeal or appeals are to be disposed of only by the Bench originally assigned. The appeal or appeals as ordered by .....

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or points of difference between the members. The entire appeal(s) cannot be referred. 3.3 The learned Counsel also relies on the ruling of the Hon'ble Bombay High Court in the case of Suzlon Infrastructure Ltd. Vs. Union of India - 2009 (15) STR 529 (Bom). The facts before the Hon'ble High Court were that in the appeal before the Tribunal, there was difference of opinion disclosed in the order, passed by the two Members and consequential questions were framed for determination of a third .....

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0.2009, in the Writ Petitions, the Hon'ble High Court taking notice that miscellaneous petition for supplementary order, till date had not been decided, observing that the issue is, whether during the pendency of the application before the third Member, it is open to an aggrieved party to apply for rectification. The difference of opinion would not constitute a decision. Under Section 35C, the power is to amend the order, to rectify any mistake apparent from record. The Members of the Tribun .....

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nforceable judgment in terms of the points, answered by the third Member. The application for rectification would therefore be maintainable even if reference is made to third Member. The Hon'ble High Court opined that the rectification application would be maintainable, pending difference before the third Member. 4. The learned Spl. Counsel appearing for the Revenue opposes the rectification application relying on the ruling in the case of Commissioner of Central Excise, Calcutta Vs. ASCU Lt .....

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pect to the issues as pointed out herein above and accordingly supplementary questions as regards difference of opinions will be referred for opinion of the learned third Member. (Pronounced in Court on 10.9.2015) 6. SUPPLEMENTARY FINDINGS OF JUDICIAL MEMBER (MYSELF) 6.1 Issue (i) - Whether the arrangement services were provided beyond the Indian Territory and hence on that count also the arrangement services would not be liable for Service Tax? Findings:- It is held that the contract for servic .....

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? Findings:- On this issue, I agree with my brother learned Technical Member that the said amount relating to the period prior to 18.4.2006 on Arrangement Fee, would not be taxable under the Finance Act, 1994. 6.3 Issue (iii)- Whether the benefit of Section 80 is not available and hence penalty under Section 76 and 78 are applicable or whether the benefit of Section 80 is available and accordingly the penalties under Section 76 and 78 are not imposable? Findings:- In view of my findings recorded .....

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