2017 (3) TMI 309 - AT - Service Tax

Tribunal dismisses rectification application by Commissioner in tax dispute

The Tribunal dismissed the Commissioner's application seeking rectification of a mistake apparent from the record in the Final Order, related to demand ... Jurisdiction of Tribunal - Disallowance of abatement under N/N. 1/2006-ST dated 1st March 2006 - short-payment of tax - Held that: - Unlike Commissioners of Central Excise or the appropriate review committees, the Tribunal is not empowered to call for and scrutinise an order-in-original or order-in-appeal to ascertain its conformity to legality and propriety; that jurisdiction to review is vested in Commissioners and Chief Commissioners of specified collegial strength - the Tribunal is debarred from rendering a finding or recording an order on a matter in which the appellant has not placed itself within the appellate jurisdiction of the Tribunal. A legacy of times past when the recovery provisions of Central Excise Act, 1944 were an extension of the assessment provisions under which duty was payable only to the extent assessed by the ‘proper officer’ - which, in our opinion, should not be resorted to. And, therefore, we did not do so. Application dismissed. Issues:Rectification of mistake apparent from the record in the Final Order related to demand confirmation, short-paid tax, irregularly availed CENVAT credit, and penalty imposition under the Central Excise Act, 1944.Analysis:The Commissioner of Service Tax filed an application seeking rectification of a mistake apparent from the record in the Final Order dated 9th September 2015. The Final Order confirmed various demands, including a short-paid tax, irregularly availed CENVAT credit, and imposed penalties under the Finance Act, 1994. The Commissioner contended that certain recoveries related to construction activities for export-oriented units and others were erroneously not excluded from the operative portion of the order. The Tribunal clarified that its jurisdiction is limited to matters raised in the appeal and cannot extend beyond that. The fear that the paid amount by the assessee was lost to revenue was deemed unnecessary as no consequential relief was granted in the order, indicating that the amount was not intended to be disallowed. The Tribunal emphasized that its decision was confined to the issues specified for determination, namely alleged short-payment and disallowance of abatement under a specific notification.The Tribunal highlighted that the appellate hierarchy under the Central Excise Act restricts the Tribunal's jurisdiction to matters raised in the appeal. The Tribunal cannot review orders beyond the scope of the appeal. The Commissioner's apprehension regarding the inclusion of a specific amount in the order was addressed by clarifying that the Tribunal's decision was limited to the issues raised for determination. The Tribunal emphasized that self-assessed and deposited tax automatically adds to the Consolidated Fund of India without the need for active adjudication. The Tribunal dismissed the Commissioner's contention of an error apparent on the record, stating that the operative portion of the order was clear and confined to the specified issues. The application for rectification was ultimately dismissed, affirming the Tribunal's decision pronounced on 7th February 2017.