TMI Blog2020 (12) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... n of determination of the liability to pay tax on any goods or services or both, was clearly debatable in view of the differing interpretations drawn by this Appellate Authority, and therefore, this Appellate Authority vide Order dated 11.12.2019 had held that there was no error apparent on the face of the record, which would warrant rectification of the original Order dated 22.03.2019 passed by this Appellate Authority under Section 102 of the CGST Act, 2017. For arriving at the aforesaid conclusion, this Appellate Authority had considered all the case laws, cited by the Applicant in his original application dated 21.08.2019, wherein the Hon'ble Courts and Tribunals have laid down the principles of law with regard to the true interpretation of the term 'mistake' or 'error', when used with the term apparent' in the various Acts, the presence of which in the Order would warrant the invocation of the rectification provision laid down under those particular Acts. As regards the supplementary submissions filed by the Applicant on 16.12.2020, wherein it was stated that the Department has accepted the ruling pronounced by the Hon'ble Kerala High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertible Foreign Exchange, normally in Euro Currency. 4. Based on the aforesaid facts, the Applicant had tiled an application dated 15th May 2018, before the Maharashtra. Advance Ruling Authority (hereinafter referred to as the MAAR ), seeking Advance Ruling as to Whether the Commission received by the Applicant in convertible Foreign Exchange for rendering services as an Intermediary between an exporter abroad and an Indian importer of an Equipment, is an export of services falling under section 2(6) outside the purview of section 13 (8) (b), attracting zero-rated tax under section 16 (1) (a) of the Integrated Goods and Services Tax Act, 2017? 5. The MAAR, vide Advance Ruling No. GST-ARA-23/2018-19/B-87, dated 10.08.2018, held that since the applicant was an intermediary , therefore, his services would be intermediary services . Therefore, section 13 (8) (b) would be applicable and the place of supply would be the location of the supplier (i.e. in Maharashtra) and since the receiver is abroad, the transaction is an inter-state supply under section 7 (5) (c) of the IGST Act, 2017, and is liable to tax @ 18%. 6. Subsequently, an appeal was preferred un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Others [1997 (8) SCC 715] (e) Ruling pronounced by CESTAT in the case of Dinkar Khindria Vs. CCE, New Delhi, 2000 (38) RLT 442;2000 (118) ELT 77 (T-LB) (ii) That the emphasis had been placed on principle of law, laid down in the abovementioned case of Sir Hari Shankar pal and Another Vs. Anath Nath Mitter and others [1949 FCR 36], wherein the Hon'ble Federal Court had observed as under: That a decision is erroneous in law is certainly no ground or ordering review. If the court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without adverting to or applying its mind to a provision of law, which gives it a jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of record sufficient to bring the case within the purview of Order XL VII, Rule 1, Civil Procedure Code. xxxxx By referring to the above cited judgment, the Appellant alleged that the MAAAR had committed an error, apparent on the face of records, as it did not apply its mind to the true meaning purport of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Smt. Ujjam Bui Vs. State of U.P., pronounced on 10.04.1962. 7. In pursuance to the aforesaid application dated 21.08.2019, seeking rectification in the Original MAAAR Order No. MAH/AAAR/SS-RJ/26/2018-19 dated 22.03.2019. the MAAAR passed the Order No. MAH/AAAR/SS-RJ/26A/2018-19 dated 11.12.2019 . rejecting the said application dated 21.08.2019 on the ground that the interpretation of the clause (e) of Section 97(2) of the CGST Act, 2017, put forth by the Applicant, was debatable. and therefore, the allegation of the Applicant in as much as that there was an error apparent on the face of the record was not sustainable, and hence, cannot be accepted. 8. Now, further to the aforesaid Order dated 11.12.2019. the Applicant has filed the present Miscellaneous Application dated 25.09.2020, seeking restoration of his earlier application dated 21.08.2019. GROUNDS OF APPLICATION 9. The Applicant, in the subject application dated 25.09.2020, has mentioned the following grounds: (i) That both the Orders, passed by this Honorable Appellate Authority, are rendered as being not in conformity with the law, having regard to the recent direct decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the place of supply will also be in India. Hence, the said intermediary services, provided by the Applicant, will not be export of services in terms of Section 2(6) of the IGST Act, 2017. (ii) The Respondent/Jurisdictional Officer has also referred to the Hon'ble Gujrat High Court Judgement dated 24.07.2020 in the case of M/s. Material Recycling Association of India Vs. Union of India wherein the Hon'ble High Court has upheld the constitutional validity of Section 13(8)(b) of the IGST Act, 2017, by declaring that the said provision is neither ultra-vires nor unconstitutional attributable to the presence of Article 246A of the Constitution. The Hon'ble High Court further observed that the legislative policy intends to tax the intermediary services since the Service Tax Regime. It has further been held that such services are liable to CGST and SGST and not to IGST. (iii)) The Respondent further submitted that there was no provision under the CGST Act to admit the restoration application once the Rectification Order had been passed. He further contended that Judgement of Hon'ble Kerala High Court was not binding in the present case. Hence, the said Restorat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Tukaram Godse, the Jurisdictional Officer, reiterated the written submissions dated 27.10.2020, wherein it has, inter-alia, been submitted that the impugned intermediary services, provided by the Applicant. cannot be treated as export of services under the GST law as the place of supply in intermediary services, in terms of Section13(8)(b) of the IGST Act, 2017, will be the location of the supplier of services, which, in the present case, is in India. Therefore, the place of supply will also be in India. Hence, the said intermediary services provided by the Applicant will not be export of services in terms of Section 2(6) of the IGST Act, 2017. He has further submitted that there is no provision under the CGST Act, 2017 to admit the restoration application once the Rectification Order had been passed. Hence, the subject restoration application dated 25.09.2020 may be rejected. APPLICANT'S SUPPLEMENTARY SUBMISSIONS DATED 16.12.2020 14. The Applicant has also filed supplementary submissions on 16.12.2020, informing that the Department has accepted the Ruling dated 03.02.2020 pronounced by the Hon'ble Kerala High Court in the case of Sutherland Mortgage Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority in its Order dated 11.12.2019. was the Hon'ble Supreme Court judgment in the case of T.S. Balaram, ITO Vs. Volkart Bros. [(1971) 82 ITR 50 (SC)], wherein the Hon'ble Apex Court has held as under: 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 are discerned. The word 'mistake' is inherently indefinite in scope, as to what may be a mistake for one may not he one for another. It is mostly subjective and dividing line in border areas is thin and indiscernible. It is something which is a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under section 154, it is not sufficient if there is merely a mistake in the orders sought to be rectified. The mistake to be rectified must he one apparent from the record. A decision on a debatable point of law or a disputed question off act 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thus, Rectification of mistake does not envisage the rectification of an alleged error of judgment. 20. Thus, from the above, it can be clearly seen that all the submissions, including all the case laws, which were cited by the Applicant in his Application for Rectification of Mistake dated 21.08.2019, have been duly considered and discussed by this Appellate Authority in detail while deciding the said Rectification Application dated 21.08.2019, vide which the Applicant had sought rectification of the original Order dated 22.03.2019. It was only after considering all the contentions and various case laws, relied upon by the Applicant, that this Appellate Authority had passed the MAAAR Order No. MAH/AAAR/SS-RJ/26A/2018-19, dated 11.12.2019, wherein it had been held that there was no error apparent on the face of the record. which would warrant Rectification of Advance Ruling, as provided under Section 102 of the CGST Act, 2017. 21. Now, the Applicant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of the hearing of the rectification application dated 21.08.2019 or at the time of the issuance of the MAAAR Order dated 11.12 2019. Hence, it cannot be said the said MAAAR Orders dated 22.03.2019 11.12.2019 were against the legal principles laid down by the Constitutional Court. It is further observed that the Hon'ble Kerala High Court. in the aforesaid case, has pronounced its Ruling dated 03.02.2020, whereby it has been held that the Advance Ruling Authority has made an error by taking stand that they do not have jurisdiction to decide upon the issue regarding place of supply, while holding that the issue related to determination of place of supply would come under the ambit of the Section 97(2)(e) of the CGST Act, 2017, for the determination of the liability to pay tax on any goods or services or both, by going through a process of reasoning, which is quite apparent from the said Order. Therefore, the error, pointed ow by the Applicant in the impugned Orders dated 22.03.2019 11.12.2019. is not apparent on the face of the record, which would invite invocation of provisions of Section 102 of the CGST Act, 2017. The said view also finds support from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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