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M/s. Dewsoft Overseas Pvt. Ltd. Versus Commissioner of Service Tax New Delhi

2016 (8) TMI 949 - CESTAT NEW DELHI

Rectification of mistake – penalty – demand barred by limitation - classification - online educational services – commercial training or coaching services - online information and data base access or retrieval services – malafide intention – Held that: - when the Revenue itself was not clear about the classification of the appellants activity and in fact proposed the classification, in the show cause notice under the category of "online information and data base access or retrieval service'. Ina .....

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cial) and Mr. R K Singh, Member (Technical) Shri B L Narasimhan, Advocate for the Appellants Shri Ranjan Khanna, AR for the Respondent ORDER The present Misc application stand filed for rectification of mistake having occurred in Final Order No. ST/53952/2015-CU (DB) dated 29.10.15 vide which the appellants appeal was rejected on merits by following the Larger Bench decision of the Tribunal in the case of Great Lakes Institute of Management Ltd. vs. CST, Chennai reported as [2013 (32) STR 305]. .....

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on. 2. When the appeal was heard by regular Bench, vide its order dated 29.10.2015, the same was rejected on merits by following the Larger Bench decision in the case of Great Lakes Institute of Management Ltd. 3. The appellants grievance is that apart from the merits of the case, the demand was also assailed on the point of limitation. The limitation issue was raised before the Tribunal on various dates of hearing when the matter was heard even prior to the reference to the Larger Bench and it .....

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down that if limitation aspect was raised but was not considered by the Bench, the same amounts to mistake on the part of the Court, requiring rectification. 5. We note that the Hon'ble Gujarat High Court in the case of CCE, Valsad vs. Atul Ltd. [2016 (332) ELT 97, (Guj)] has held that assessees' contention of demand being barred by limitation, left out for consideration in deciding the appeal against him on merits, falls within the scope of rectification. To the same effect is decision .....

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ed while passing the Final Order amounts to a mistake, thus falling within the provisions of Section 35 C (2) of the Central Excise Act, 1994, requiring rectification. The Hon'ble Supreme Court in the case of Honda Siel Power Products Ltd. vs Commissioner of Income Tax, New Delhi [2008 (221) ELT 11 (SC)] has observed that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error, then the Tribu .....

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s not stand considered by the Tribunal, we are of the view that same amounts to a mistake on the part of the Tribunal, in view of various decisions, as discussed above. Accordingly, we allow the ROM application and rectify the said mistake and proceed to decide the issue on limitation. 7. The period involved in the present appeal is from 1.7.2004 to 9.9.2004 and from 16.5.2005 to 31.3.2007 whereas the show cause notice stand issued on 10.7.2008 that is by invoking the longer period of limitation .....

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n 'online information and data base access or retrieval services' but under 'Commercial Training and Coaching services' which was exempted during the relevant period. In the present show cause notice also, the demand was proposed under 'online information and data base access or retrieval services' but Commissioner vide its impugned order has confirmed the tax under 'Commercial Training and Coaching services'. 8. It is seen that a search was conducted in the appel .....

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here is delay for issuing present show cause notice dated 10.7.2008 in respect of same activities. The Hon'ble Supreme Court in the case of Nizam sugar Factory vs. CCE [2006 (197) ELT 465 (SC)] has held that where the first show cause notice stand issued, the second show cause notice cannot be issued in respect of the same set of allegations, by invoking the longer period of limitation. As such, we are of the view that extended period would not be available to the Revenue for raising the dem .....

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