2023 (9) TMI 924 - AT - Service Tax

Tax Tribunal denies rectification, orders further review on penalty issue & service tax demand

The Tribunal held that the rectification of the tax order was not based on apparent error and required detailed analysis, rendering it unsuitable for ... Rectification of mistake - reduction in demand - Adjudicating Authority can rectify its own order in terms of Section 74 of FA or not - error apparent on the face of record or not - HELD THAT:- From the plain reading of above Section 74 it is clear that Adjudicating Authority can rectify own order only for the limited purpose i.e. if there is apparent error on the face of the order. The rectification of the order was not made only on apparent error but the issue in the rectification of order was mixed question of law and fact that on which date service tax is leviable even the Cenvat credit issue also involve a detailed scrutiny. Therefore, the adjudication order does not suffer from apparent error whereas the issue under rectification was required a detailed analysis and therefore such issue could not have been decided by rectifying the order nor the issue which was rectified by the Adjudicating Authority was required to be agitated in an appeal and not by way of rectification. Moreover, the appellant have not attended the hearing and the order was passed ex-parte. The rectification was made on the date provided subsequently to the Adjudicating Authority therefore, at the time of passing the order the data was not available before the Adjudicating Authority. On this ground also the rectification of order was not correct and legal in terms of Section 74. The remaining issues raised before the Commissioner (Appeals) by the appellant through their appeal is related to penalty. The order of the learned Commissioner (Appeals) in the Revenue’s appeal before him is correct and legal. As regards the appellant’s appeal which is related to penalty on the demand, the same needs to be decided along with the demand of service tax - Since the adjudication order was passed without any hearing and as per the order there was error in computing the demand, the matter needs to be remanded to the Adjudicating Authority for passing denovo adjudication order after considering the appellants submission to be made. Matter on remand. Issues involved:The issues involved in this case are related to the rectification of a tax order under Section 74 of the Finance Act, 1994, imposition of penalty on the confirmed demand of service tax, and the legality of the rectified order-in-original.Rectification of tax order under Section 74:The appellant, engaged in providing cable television services, failed to pay service tax in a timely manner and a show cause notice was issued for a total service tax amount. The Adjudicating Authority passed an ex-parte order-in-original due to the appellant's non-attendance at the hearing. The appellant later applied for rectification of mistake under Section 74, which was considered, and a rectified order-in-original was passed. The appellant appealed against the rectified order, challenging the penalty imposed and the rectification process. The Tribunal found that the rectification was not based on apparent error but involved a detailed analysis of legal and factual issues, such as the date of service tax liability and CENVAT credit utilization. Since the appellant did not attend the hearing and the rectification was made based on subsequent data, it was deemed incorrect and not in compliance with Section 74. The Tribunal concluded that the matter required detailed scrutiny and should have been raised in an appeal rather than through rectification.Imposition of penalty on service tax demand:The appellant argued that the penalty imposed on them was not sustainable due to a genuine belief regarding the new levy of service tax on cable TV services. The appellant cited various judgments to support their argument. On the other hand, the Revenue reiterated the findings of the impugned order. The Tribunal observed that the penalty issue needed to be decided along with the demand of service tax. As the original adjudication order was passed ex-parte and contained errors in computing the demand, the Tribunal decided to remand the matter to the Adjudicating Authority for a denovo adjudication order. The appellant would be granted a personal hearing before the denovo order is passed.Conclusion:The Tribunal found that the rectification of the tax order was not based on apparent error and required a detailed analysis, making it unsuitable for rectification under Section 74. The penalty issue was deemed to require further consideration along with the service tax demand, leading to a remand for a denovo adjudication order. The appellant's appeal related to the penalty was to be decided in conjunction with the service tax demand, ensuring a fair opportunity for the appellant to present their case.