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Amway India Enterprises Pvt. Ltd. Versus CST, Delhi

2016 (9) TMI 689 - CESTAT NEW DELHI

Rectification of mistake - interchange of figures in the order - incorrect appreciation of facts - Held that:- there is an inadvertent interchange of figures inasmuch as the service tax demand under IPR service is ₹ 13,12,41,198/- and under franchise service is ₹ 20,27,06,713/ but these figures have got inter changed in opening para of the CESTAT order. - order rectified on this ground. - Incorrect appreciation of facts - non-consideration of observation given in para 29 of the o .....

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lant Shri K. Poddar, D.R. for the Respondent ORDER ROM application is filed seeking rectification of mistake claimed to be apparent in the Final Order No. 51612/2015 dated 14.5.2015. 2. Ld. Advocate for the appellant categorically stated that he is pressing that ROM application only on the following points. The grounds contended for the sought rectification are summarised against each point. (i) The Hon ble CESTAT has inadvertently recorded incorrect demand amounts under IPR and Franchisee Servi .....

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is liable to pay service tax under franchisee service on the income received by it in the form of subscription from the various distributors appointed by the company who were given representational rights to sell the products of the applicant. But during the period in dispute (2008-2011) the appellant did not collect any subscription income or joining fee from the distributors but it was subscription for purchase of periodicals and therefore there is need for rectification of this mistake. (iii .....

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rvice of the Finance Act only in respect of patents and designs which are registered in India. Accordingly, they paid service tax after claiming 5% reduction from service tax on account of deposit of R&D cess in terms of Notification 17/2004-ST dated September 10,2004. The Noticee was not entitled to the benefit of Notification as the Noticee had not submitted the documentary evidence in this regard. Further, the interest also liable to be charged and recovered from them under Section 75 of .....

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anded, 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 Court in the case of Commissioner of Income Tax Vs. Mool Chand Shyam Lal - (2004) 190 CTR (All) 332. (iv) The CESTAT order has confirmed that no .....

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ding that what has been sought at Points No. (ii), (iii) and (iv) is review of the order and is beyond to scope of rectification of mistake. 4. We have considered the contentions of both sides and perused the records. As regards the rectification of mistake relating to Point No. (i), Id. DR agrees that there is an inadvertent interchange of figures inasmuch as the service tax demand under IPR service is ₹ 13,12,41,198/- and under franchise service is ₹ 20,27,06,713/ but these figures .....

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ised 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 appo .....

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estion of fact is not a mistake apparent from the record. Indeed in para 11 of the said judgement of Hon'ble Supreme Court explained the scope of mistake apparent from record and the said para is reproduced below: "11. Mistake" is an ordinary word but in taxation laws, it has a special significance, It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word 'mistake" is inherently indefinite in .....

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aw or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word apparent" is that it 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 par .....

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g, its setting aside and remand for de novo adjudication is clearly sustainable and in this context the observations of Punjab & Haryana High Court in the case of Bipin Lal Kuthiala (supra) reproduced earlier do not come to the rescue of the appellant. 7. As regards the mistake sought to be corrected on the ground that no findings has been given on penalty leviable under Sections 76 and 77 ibid and that it is a fit case for invocation of Section 80 for non-imposition of penalty, it is clearl .....

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(270) ELT 625 (SC) = 2011-TIOL-77-SC-CX has also so held as is evident from the quotation from the said judgement reproduced below : "This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when t .....

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