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2015 (9) TMI 1388 - CESTAT CHENNAI

2015 (9) TMI 1388 - CESTAT CHENNAI - TMI - Application for Modification / Rectification of mistake in the stay order - it was contended that services were rendered outside India and no part of the service was performed in India. Therefore, he submits that they are not liable for predeposit and also pleaded for revenue-neutrality as they are entitled for the entire credit of service tax paid under reverse charge. - Held that:- Tribunal can only rectify any mistake apparent on record in the said o .....

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cisions [2010 (12) TMI 698 - MADRAS HIGH COURT] are directly applicable to the facts of the present case. In view of the forgoing discussions and by respectfully following the Apex Court and High Court decisions, we do not find any apparent and manifest mistake in the Tribunalís interim order so as to exercise the powers to recall or modify the Misc order [2015 (8) TMI 958 - CESTAT CHENNAI] - Decided against assessee. - Application No.ST/MISC/40613/2015 in ST/40826/2014 - Misc Order No.41202/201 .....

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erest and penalty. The Bench after considering the various submissions of both appellants and the Revenue and upon perusal of records, directed the appellant to make predeposit of ₹ 7 Crores within 8 weeks and to make compliance by 19/8/2015. The adjudicating authority confirmed the service tax demand on the service of underwriters in the category of Underwriter Service under reverse charge mechanism. 3. Ld. Advocate appearing for the appellant reiterated the grounds made out in their modi .....

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as obtained through R.T.I application before the CPIO dt. 17.3.2015 filed under R.T.I. Act 2005 and drew attention to the paragraphs 5,6 of the letter dt. 12.2.2013 and para-2 of letter dt. 23.3.2013 where the Commissioner himself submitted to the Chief Commissioner of Central Excise, Coimbatore that service provider is not classifiable as underwriter and is not liable for service tax. He also submits the issue of time bar. He discussed the findings of various paragraphs of the Tribunal s order .....

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following decisions :- (1) Air India Ltd. Vs CST New Delhi 2013 (30) STR 458 (Tri.-Del.) (2) K.G.Denim Ltd. Vs CST Salem 2015 (37) STR 616 (Tri.-Chennai) (3) Jubiliant Life Sciences Ltd. Vs CCE Noida 2013 (29) STR 529 (Tri.-Del.) (4) Orient Crafts Ltd. Vs UOI 2006 (4) STR 81 (Del.) 4. In view of above decisions, he requested for modification of stay order for complete waiver of predeposit or reduction in amount of predeposit. 5. On the other hand, Ld. A.R vehemently opposed the appellants cont .....

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bunal has no power to review its own order and submits that Tribunal after considering the stay application and all the case laws already relied by appellant has passed the stay order and ordered only ₹ 7 crores out of total demand of more than ₹ 25 crores which is justifiable and pleads for rejection of modification petition. He relies the following decisions :- (1) CCE Belapur Vs RDC Concrete (India) P.Ltd. 2011 (270) ELT 625 (SC) (2) CCE Calcutta Vs A.S.C.U. Ltd. 2003 (151) ELT 48 .....

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dered the submissions of both sides and the application is seeking modification of this Tribunal interim order dt.29.5.2015. This Tribunal after considering their stay application and oral submissions made by the counsel discussed the issue in detail and ordered predeposit of ₹ 7.0 crores out of total service tax demand of ₹ 25,49,32,832/- and equal amount of penalty imposed by the adjudicating authority. The appellants mainly contended in their grounds for modification that they are .....

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ch mistake brought out by the appellant but only seeking to revisit the facts and findings of this Tribunal order dt.29.5.2015 Which amounts to review of the order and there is no powers vested with Tribunal to review its own order. 8. In this regard, the Hon ble Supreme Court in the case of CCE Vs RDC Concrete (India) Pvt. Ltd. clearly held that re-appreciation of evidence done by CESTAT cannot be considered as rectification of mistake and held that the ROM order is bad in law and quashed the o .....

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ent from the record cannot be something which can be established by a long drawn process of reasoning on points on which there may conceivably 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 .....

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he effect that the assessee 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 cannot be said to be rectification of mistake apparent on record. ... ... ... 21. This Court has decided in several cases that a mistake apparent on record must .....

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Textiles, 41 ITR 732 that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. 22. For the aforestated reasons, we are of the view that the CESTAT exceeded its powers and it tried to re-appreciate the evidence and it reconsidered its legal view taken earlier in pursuance of a rectification application. In our opinion, the CESTAT could not have done so while exercising its powers under Sectio .....

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with regard to powers of CESTAT to recall the order in the predeposit order not challenged and also not complied. The relevant paragraphs of High Court order is reproduced as under :- 12. The learned counsel would, however, contend that under Rule 41 of the Appellate Tribunal [Procedure] Rules, the Appellate Tribunal has got power to entertain such applications. Rule 41 reads as follows :- Orders and 41. directions in certain cases. - The Tribunal may make such orders to give such directions as .....

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ing with the payment of pre-deposit. In these cases, the interim order passed by the Tribunal is only in respect of 25% of the demand made and regarding the balance 75%, it is the statutory obligation under Section 129-E of the Act for the petitioner to deposit. Since the petitioner did not discharge such statutory obligation under Section 129-A of the Act in respect of 75% of the payment, the appellate tribunal was right in rejecting the appeals. 14. The learned counsel would further add that w .....

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said orders in the manner known to law provided they were of the view that they had a valid ground under Section 129-E of the Act to get pre-deposit of the entire duty amount demanded dispensed with. Without doing so, it is not at all open for the petitioners to file applications subsequently under Section 129-B(2) of the Act to recall the ultimate orders passed by the appellate tribunal rejecting the appeals. In my considered opinion, as I have already stated, if once the order regarding pre-de .....

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