2012 (10) TMI 1139 - AT - Service Tax

Tribunal rules in favor of appellant on taxation issue, rectifies mistake in Final Order

The Tribunal ruled in favor of the appellant in a case concerning the taxation of a receipt for the supply of manpower services, finding that the ... Order in the case of another judgment copy & paste to present case - Application for Rectification of Mistake (ROM) - HELD THAT:- In the entire scenario, court noted that admittedly, a wrong order got issued (as the mistake happened in the hands of Steno) without noticing the facts of the present case, the replacement of said order can not be considered to be a review of the same. The entire order, which got issued was a mistake inasmuch as the same does not relate to the facts of the present case except that the reference of Appeal No. and impugned order-in-appeal match in the preamble to those in case under consideration making it look as if the present order relates to the appeal of M/s. Paramount Communication. As such, it has to be concluded that the entire order is a mistake, requiring rectification of same. The point made out by learned AR that such rectification can be done only to small clerical mistake in the order, cannot be appreciated inasmuch as in the present case the entire order is a clerical mistake. The mistakes required to be rectified does not depend upon the length of said mistake or does not relate to one or two words in the order. When the entire order which got issued was not relatable to the matter under dispute, notwithstanding the reference numbers in the preamble of the same, it has to be held as if the entire order was a mistake. Therefore, it is very obviously a mistake apparent on record and needs correction at any rate and therefore, we decided to dictate the appropriate order afresh. Issues:1. Taxation of receipt as consideration for supply of manpower.2. Denial of Cenvat credit on outdoor catering and cab services.3. Rectification of mistake in the Final Order.Analysis:1. The first issue revolves around the taxation of a receipt as consideration for the supply of manpower services. The appellant, a manufacturer of excisable goods, shared common staff with a sister concern. The Revenue sought to tax the receipt as consideration for the supply of manpower. However, the Tribunal found that the appellant was not engaged in the business of supplying manpower. The staff shared between the companies worked for both entities, and the expenses were shared. It was determined that no taxable activity existed on the appellant's part to be taxed under manpower supply services. The Tribunal allowed the stay petition and appeals, setting aside the impugned order and ruling in favor of the appellant.2. The second issue pertains to the denial of Cenvat credit on outdoor catering and cab services. The Revenue filed a ROM application seeking rectification of the Final Order. The Tribunal had denied the Cenvat credit on these services, citing precedents. However, the Revenue argued that the facts in the order did not relate to the appeal in question. After considering the matter, the Tribunal found a mistake in the order, where dictation from another case was copied and issued in the present appeal. Despite arguments against rectification, the Tribunal concluded that the entire order was a mistake due to incorrect dictation and decided to dictate a fresh order, withdrawing the earlier one and allowing the ROM application.3. The final issue involves the rectification of a mistake in the Final Order. The Tribunal acknowledged the mistake in the order, where dictation from a different case was mistakenly issued in the present appeal. Despite objections raised by the Revenue on the scope of rectification and the need for re-appreciation of merits, the Tribunal held that the entire order was a clerical mistake and required rectification. The Tribunal decided to dictate a correct order afresh, withdrawing the earlier order and allowing the ROM application. The rectification was deemed necessary to align the order with the facts of the present case and ensure accuracy in the decision-making process.