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Indian Visit (P.) Ltd. Versus Commissioner of Service Tax, Delhi-I

2015 (11) TMI 475 - CESTAT NEW DELHI

Rectification of mistake - Restoration of appeal - Availment of CENVAT Credit - Tour service - Maintenance of separate accounts - Tribunal consider the issue of penalty only and did not consider the eligibility of Cenvat Credit - appellants utilized Cenvat Credit on those input services which were used for providing non-taxable output service - Held that:- An error cannot be said to be apparent if it is not self evident. In the present case there is no error manifest and the Tribunal by its Fina .....

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e two opinions can hardly be said to be an error apparent on the face of the record. - applications before me are an ROA application and a Misc. application to convert the ROA into an ROM by causing amendments in the ROA. The learned Counsel for appellant has not put forward any explanation as to why he has filed an ROA - While an application for restoration is to be filed under Rule of 20 of the CESTAT, (Procedure) Rules, 1982, Section 35C(2) of the Central Excise Act, 1944 provides for Rectifi .....

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er Nos. M/52806-52807/2015-SM(BR) - Dated:- 28-7-2015 - MS. SULEKHA BEEVI C.S., J For The Appellant : R. Krishnan, Adv. For The Respondent : G.R. Singh, DR. ORDER 1. The above Misc. Application No. ST/Misc/51552/2015 is filed by the appellants seeking amendment of the ROA application No. ST/ROA/50347/2015. 2. The ROA application is in fact not an application for restoration of the appeal. On perusal it is an application for Rectification of Mistake filed in the guise of an application for Restor .....

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t in the ROA is to recall the Final Order, rehear on merits and pass appropriate order correcting the apparent error on the face of record. Thus per se the application is ROM. But the same is seen filed as ROA. When the ROA application came up for hearing on 18.6.2015 these defects were pointed out. The learned Counsel for appellant sought adjournment of the matter. The case was adjourned to 27.7.2015 when further adjournment was sought. Today when the ROA came up for hearing, another applicatio .....

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eheard. It is his submission that the Final Order did not deal with the merits of the case. That this Tribunal consider the issue of penalty only and did not consider the eligibility of Cenvat Credit. That though plea was raised whether there is export of service, it was not considered at all and that therefore there is error apparent on the face of record. 4. The learned DR opposed both the Misc. application and ROA application. He submitted that both the applications are not maintainable. The .....

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the proceedings. 5. I have carefully considered the rival submissions. The issue in the appeal is regarding availment of Cenvat Credit. The appellants, M/s Indian Visit (P.) Ltd., were providing tour services for both foreign and local tourists. The payments from foreign tourists were received in convertible foreign exchange. According to appellants these being treated as export of services are not taxable services whereas, services provided to local tourists were taxable. Appellant availed Cenv .....

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he Commissioner (Appeals). By the impugned order the Tribunal has upheld the same. 6. The foremost submission of the Counsel appearing on behalf of appellants is that there is an error apparent on the face of record as the Tribunal failed to consider the issue whether appellants were eligible to avail Cenvat Credit and also whether there was export of services. 7. The learned Counsel for the appellant relied upon the several judgments in which it is held that if there is error apparent on the fa .....

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while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it sho .....

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