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TMI Blog2016 (9) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... rectification are summarised against each point. (i) The Hon'ble CESTAT has inadvertently recorded incorrect demand amounts under IPR and Franchisee Service. Para 1 page 2 of the CESTAT order records the demand raised under IPR Service as Rs. 20,27,06,713/- and Franchisee Service as Rs. 13,12,41,198/-. However, as mentioned in the OIO, the demand under franchisee service was Rs. 20,27,06,713/- and under IPR service was Rs. 13,12,41,198/-. This is evidenced at page 139-140 of the Appeal. This mistake needs to be corrected. (ii) The facts have not been correctly taken into account inasmuch as the CESTAT order held that the applicant is liable to pay service tax under franchisee service on the income received by it in the form of subscrip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted that service tax was payable under IPR which are registered in India and that once the findings are clear the matter cannot be remanded for de novo adjudication. Reliance was placed on the decision of Punjab & Haryana High Court in the case of Bipin Lal Kuthiala Vs. Commissioner of Income Tax [1957] 32 ITR 361, wherein it was held as under : "A case will not, however, be remanded, for further amended findings where the findings are direct, free from ambiguity, consistent, and fully responsive to the issues and contain nothing indicating that they are ill-founded in point of law." Therefore, this mistake of remanding the case in relation to IPR service needs correction. Ld. Advocate also cited the judgement of Allahabad High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2011 covering different period confirming impugned service tax demands (along with interest and penalties). The demands had been raised under two taxable services : (i) Intellectual Property Rights Service (Rs.13,12,41,198/-) and (ii) Franchise Service (Rs.20,27,06,713/-) for the period 2008-09 to 2010- 11. No penalty was however imposed under Section 78 of Finance Act, 1994," 5. As regards the rectification of mistake sought on the ground that there has been incorrect appreciation of facts inasmuch as subscription amount on which the demand has been confirmed was not on account of subscription from various distributors appointed by the company who were given representational rights to sell the products of the appellant but was subscript ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows 6. As regards, the rectification of mistake sought on the ground that the observation given in para 29 of the order in original has not been considered in the Tribunal's order although a clear finding has been given by the Commissioner in that para that service tax under IPR service is leviable only in respect of patents and designs which are registered in India and therefore it could not have been remanded by CESTAT. Ld. Advocate cited the judgement of Punjab & Haryana High Court in the case of Bipin Lal Kuthiala (supra). In this regard, it is suffice to say that CESTAT has clearly held that the order in original with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which in the case of can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO v. Ashok 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. The judgement of Allahabad High Court in the case of Mool Chand Shyam Lal (supra) cited by Id. Advocate has also clearly stated as under: "However, if an error falls within the provisions of Section 254(2) of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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