TaxTMI 
TaxTMI 
2026 (2) TMI 1427
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....e Hon'ble Chennai Tribunal in the case of IndusInd Bank Ltd. Vs. Commissioner of Service Tax, Chennai 1 where the Tribunal while allowing the appeal held that the discount received by bank from automobile dealers cannot be treated as a consideration for service. It was submitted that petitioner's case will be squarely covered by IndusInd Bank Ltd. (Supra) where the Tribunal held that no service provider receiver relationship between the bank and vehicle dealer and therefore, the bank cannot be said to have provided any service to the vehicle dealer. According to petitioner, though this decision of the Chennai Tribunal was brought to the notice of the Hon'ble Tribunal during the course of personal hearing as well as by way of additional written submissions, there is only reference in the appeal order wherein merely arguments put forth by counsel have been briefly reproduced and the Tribunal has not provided any observation, findings or comments on the aforesaid decision. According to petitioner, this constitutes a mistake apparent from record. 4. While rejecting the application, the Tribunal not only has gone into the merits of the case but the stand of the Tribunal was irr....
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....pplication for Rectification of Mistake no. ST/ROM/86163/2019 dated 23.9.2019 filed by petitioner in full." 7. All rights and contentions of the parties are kept open. Since the matter is of 2019, we request the Tribunal to dispose the Miscellaneous Application as early as possible subject to its roster, preferably on or before 31st October 2024." 2.1 Appellant has filed Service Tax Appeal No. 85741 of 2014 challenging the Order-in-Original No. 08/AC/COMMR/Th-II/ST/2013 dated 02/12/2013 passed by Commissioner of Central Excise, Thane-II. 2.2 While recording the facts of the case in the Final Order No. A/86593/2019 dated 13.09.2019 against which this ROM was filed, following was recorded:- "2.1 During the course of EA-2000 Audit conducted for the period 2008-11 it was observed that appellant is in the business of vehicle finance. They are having tie up with the various vehicle dealers for financing the vehicles. They are issuing advertisement jointly for promoting the dealers business and sharing the expenses. They were also taking CENVAT Credit on the portion of advertisement expenses incurred by them in respect of the advertisements jointly issued by them a....
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....Chennai). • The decision in the case of M/s Tata Motors Ltd. 2019 (1) TMI 511 cannot be considered as binding precedent which has been relied upon in their order by the Tribunal also. • In the case of M/s City Financial Consumer Finance India Ltd. 2017-TIOL-2363-CESTAT-Del, cannot be relied upon. • The decision in the case of M/s Hudco Vs Cst 2012 (26) STR 531 (Tri.-Mum) and other judgments relied upon by the Tribunal in the Final Order are distinguishable. • As the Tribunal in Final Order failed to consider the decision in the case of M/s Indusind Bank, there is an apparent error in record and the Rectification Application Should be allowed. 3.3 Learned Authorised Representative relies upon the earlier orders of the Tribunal dismissing the ROM Application and the Final Order and submits there is no error apparent on record. 4.1 We have considered the Final Order No. A/86593/2019 dated 13.09.2019 of the Tribunal along with the grounds taken in the ROM Application and also in terms of observations made by Hon'ble Bombay High Court vide Order dated 10.06.2024. 4.2 Before we proceed further, undisputedly as recorded in para-....
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....ainable before the Hon'ble High Court. Appeal in this case was to be filed before Hon'ble Supreme Court, as the issue involved is in relation to classification/taxability of service is involved. As the issue involved in the matter is relating to taxability of services/ transactions in dispute, Hon'ble High Court was lacking jurisdiction, as no appeal has been preferred before Hon'ble Supreme Court, this order of the Tribunal being appealed against have required finality on the date even when this order withdrawing the appeal has been issued by Hon'ble Bombay High Court. In the case of ICICI Bank [2023 (79) G.S.T.L. 387 (Bom)] Hon'ble Bombay High Court has observed as follows: 9. We have heard the Learned Counsel for the parties and also perused the record. From the perusal of Section 83 of the Finance Act, 1944, it is clear that Section 35G and Section 35L of the Central Excise Act, 1944 are made applicable in relation to service tax, as they apply to the rate of excise duty. Section 35G provides for Appeal to High Court. Sub-section (1) thereof clearly provides that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or aft....
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.... (supra) is apposite. The following question had fell for consideration of the Full Bench as arisen from the orders as referred by the Division Bench : (a) "Whether the question of taxability or excisability of goods is an issue of rate of duty arising from orders of the Tribunal which are appealable only to the Supreme Court in terms of Section 35L(2) of the Act, applies even to appeals from order of the Tribunal passed prior to 6 August, 2014, i.e., the date of insertion of sub-section (2) to Section 35L of the Act? (b) Whether the amendment made to Section 35L of the Act on 6 August, 2014 by insertion of sub-section (2) therein, is clarificatory or prospective in nature". 13. The Full Bench, considering the provisions of Section 35G and 35L and the law in such context, answered the issue in terms of what has been held in paragraph 9 of the said judgment, which reads thus : "9. In view of our above discussion, we now answer the questions posed in the reference for our opinion as under : (a) Regarding question (a) - Appeals from orders of the Tribunal relating to taxability or excisability passed prior to 6th August, 2014, i.e., the dat....
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....Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods." (Emphasis supplied) 8. The Hon'ble Supreme Court having decided that classification issue in Navin Chemicals Manufacturing and Trading Company Limited v. Collector of Customs (supra) in an issue of rate of duty and for value of goods ....
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....APM Terminals India Pvt. Ltd. [2019 (21) G.S.T.L. 26 (Bom.)] following was observed by the Hon'ble High Court: 11. On perusal of the impugned order, we find that the issue which arise in this appeal is whether the consideration which is received under the head "Cargo Handling" services is in fact consideration received for services classifiable under "Storage and Warehousing" services as contended by the Revenue. According to the Revenue, a part of the consideration received is for services rendered under the head "Storage and Warehousing" services while according to the appellant, the entire services are classifiable under the head "Cargo Handling" services. Thus, the dispute is with regard to classification of services. It is only after the service is classified into its appropriate head would the question of exclusion of export services from service tax, if classifiable under the head "Cargo Handling Services" would arise. Thus, the primary issue which would arise is classification of the Services of giving space for storage to MLIL and others for consideration. In fact, the Apex Court in Navin Chemicals Mfg. (supra) has made a reference to sub-section (5) of Section 12....
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.... of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods." (emphasis supplied) 12. Thus, the Apex Court having decided that the classification issue in Navin Chemicals Mfg. (supra) is an issue of rate of duty and/or value of goods for the purposes of assessment, the same....
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....spective also would have no bearing on the issue arising in the present appeal from the impugned order of the Tribunal dated 9th July, 2014. Therefore, in the above view, there is no occasion in the present facts to examine whether the amendment made by the insertion of sub-section (2) to Section 35L of the Act is retrospective or prospective. This as the amended provision has no application to the present facts. 14. The contention of the appellant that Section 35G of the Act, has no application to the Finance Act, 1994 is on the basis of Section 35E of the Act is not referred to in Section 83 of the Act. This is so as Section 83 of the Finance Act, 1994 only makes reference to such provisions of the statute, which are in force. In fact, it specifically refers to Section 35G of the Act. Thus, we find no merit in the above submission. 15. It is also contended that the scope of an appeal to the Supreme Court under Section 35L of the Act is limited and, therefore, this Court should entertain this appeal. Reliance was placed upon the decision of the Supreme Court in Steel Authority of India Ltd. v. Designated Authority (D.G.) - 2017 (349) E.L.T. 193 (S.C.). In the abo....
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....would be appealable only to the Hon'ble Supreme Court and not the High Court. b) Regarding question (b) - The amendment made to Section 35L of the Act is clarificatory in nature and, therefore, retrospective in operation. 4.5 Now come to the question whether in such cases where the issue involved was in relation to classification/taxability of the services. It is an order of this Tribunal filed against rectification of mistake application was maintainable before the Hon'ble High Court in a writ petition. 4.6 We find that while considering the rectification application the basic observation which we made with regards to the fact that there is no error apparent from the record and the decision has been rendered after taking into account all the relevant facts and law on the subject, when the Tribunal has considered the issue on merits. On the basis of law and facts as understood by each, there cannot be any reason for that there was an apparent error. Further it is not even the case of the applicant that judgement which the applicant has claimed to be not considered (Decision of Chennai Bench of CESTAT) was a bind binding judicial precedence i.e. a decision rendered by....
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.... a basis for its repetition. By refusing to direct the respondent authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law..." 4.7 In the case of Ratan India Power Ltd. [2023 (73) G.S.T.L. 9 (Bom)] Hon'ble Bombay High Court has observed: 16. It is well established that the availability of an alternate remedy does not necessarily preclude a writ petition under Article 226 of the Constitution of India. The rule of non-interference in writ jurisdiction when an alternate remedy is available, is self-imposed. Whether a writ petition should be entertained in such circumstances depends on various factors. In considering the present petition, three issues arise for consideration. First, the general principle that writ jurisdiction should not be exercised when a statutory remedy of appeal is available unless exceptional circumstances, such as a breach of principles of natural ju....
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.... of the Act of 2017 and liability to pay Service tax under reverse charge should not be demanded and recovered from the Petitioner; (2) Whether extended period specified in the proviso to sub-section (1) of Section 73 of the Finance Act, 1994, read with Sections 142 and 174 of the Act of 2017 should not be invoked for recovery of the Service tax due from the Petitioner; (3) Whether interest is liable to be demanded and recovered under Section 75 of the Act 1994, read with Sections 142 and 174 of the Act of 2017; (4) Whether the Noticee is liable for penalty under Sections 76, 77(1) and 78 of the Act read with Sections 142 and 174 of the Act of 2017. The main issue to be determined was whether the services received by the Petitioner way of restoration of the command area, against payment of consideration as non-irrigation charges, should be considered as a service under Section 65B(44) of the Finance Act, 1994, read with Sections 142 & 174 of the CGST Act, 2017 and the liability to pay Service Tax under reverse charge. Second was whether the extended period specified in the proviso to sub-section (1) of Section 73 of the Finance Act, 1994, read wi....
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....roversy related to the classification of service, and even if the show cause notice resulted in a final order, the appeal would lie before the Supreme Court. The revenue argued that a different position of law would apply from 1 July, 2012, when the scheme of service tax changed, and the negative list came into force. However, the High Court overruled these objections and held that the service rendered by the petitioners was classifiable under "goods transport agency" and not "cargo handling service." The Supreme Court disapproved of the High Court entertaining the writ petition, stating that when there was a serious dispute regarding the classification, the High Court should not have entertained the writ petition, especially when the final appeal would lie in the Supreme Court. The Hon'ble Supreme Court noted that the application of the legal position itself was in serious dispute, and the nature of the service would need to be examined to determine whether it falls within the parameters of the negative list or whether it was a support service. 31. Further, the Division Bench of this Court in the case of Hover Automotive India Private Limited v. Union of India and Ors. [O....
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....erits. 33. The Writ Petition is dismissed. In the case of Auto Ignation Ltd. [2002 (142) E.L.T. 292 (Bom)] Hon'ble Bombay High Court has observed as follows: 25. The CEGAT has recorded reasons in support of its conclusions. Certain factual aspects have also been highlighted in the order. The correctness of factual position and the conclusions drawn, based on factual aspects, can only be appropriately gone into and tested by the appellate authority. We do not think it appropriate to express our opinion about merits since the petitioners have to avail the alternate remedy. In Tin Plate of India Ltd. v. State of Bihar, 1998 (6) SCALE 36, Supreme Court observed that when an alternate and equally efficacious remedy is open to a person, he should be required to pursue the remedy and not to invoke extraordinary jurisdiction of the High Court under Article 226 of the Constitution, and where such a remedy is available, it would be sound exercise of discretion to refuse entertain the writ petition under Article 226 of the Constitution. While dismissing the writ petition on the ground of alternative remedy, High Court is not required to express any opinion on merits of th....
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.... is by no means an appeal in disguise whereby an order even if it is not valid, is re-heard and re-decided. Rectification of mistake application lies only for patent mistake. Only in a case where the mistake stares one in the face and there could reasonably be no two opinions entertained about it, a case for rectification of mistake could be made out. The Hon'ble Supreme Court in para-11 of their judgment in the case of Thungabhadra Industries Ltd. v. Government of Andhra Pradesh represented by the Dy. Commissioner - AIR 1964 (SC) 1372 had held as under :- "(11) What, however, we are now concerned with is whether the statement in the order of September, 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of ....
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....is that after the passing of the judgment, decree or order, Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistake which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial Court had specifically held the respondents State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date....
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.... to recall an order validly passed. 4.9 Relying upon the above decision of larger bench, in the case of Krishna Ultramarine And Chem. Pvt. Ltd [2004 (167) E.L.T. 58 (Tri. - Chennai)] following was held: ROM application has been filed on the ground that during the hearings and in the cross-objections filed, they have cited the following judgments: U.O.I. v. Bombay Tyres International Pvt. Ltd. - 1984 (17) E.L.T. 329 (S.C.) Siva Tobacco Co. v. CCE - 1996 (87) E.L.T. 177 (T) Kerala Electric Lamp Works Ltd. v. CCE - 1996 (87) E.L.T. 206 (T) 2. Consultant submits that they are now relying on the following judgments : Bharat Aluminium Co. Ltd. v. CCE - 2003 (156) E.L.T. 207 Bombay Bangalore Freight Carrier Ltd. - 2003 (156) E.L.T. 101 3. Based on these judgments Consultant submits that there is mistake apparent on the face of the record and the order should be recalled as the judgment cited by them have not been appreciated and had not been recorded and analysed by the Tribunal. 4. Heard ld. DR, Shri C. Mani who submits that this judgment was dictated and pronounced in the Open Court. He further submitted that the....
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....this Tribunal under Section 22(3)(f) of the Administrative Tribunals Act, 1985 is limited and akin to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC. As per the settled principles of law while exercising the power of review, correction of an erroneous view taken earlier is not permissible. 10. The Hon'ble Apex Court in Ajit Kumar Rath v. State of Orissa and Others - (1999) 9 SCC 596 held that "power of review available to the Tribunal under Section 22(3)(f) is not absolute and is the same as given to a Court under S. 114 read with Order 47 Rule 1 of CPC.". It has further held that "the scope of review is limited to correction of a patent error of law or fact which stares in the face, without any elaborate argument being needed to establish it" and that "exercise of power of review on a ground other than those set out in Order 47 Rule 1 amounts to abuse of liberty granted to the Tribunal and hence review cannot be claimed or asked merely for a fresh hearing or arguments or corrections of an erroneous view taken earlier." 11. In Union of India v. Tarit Ranjan Das, [2004 SCC (L&S) 160] the Hon'ble Apex Court held that the scope of revie....
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....9), which was upheld by the Hon'ble Supreme Court on 05.09.2013, observed as follows: (tm) "6. From the above, it emerges clearly that the earlier five successive rounds of litigation have been decided on the basis of the Charge Memo dated 15.11.1993. Now, the applicant has sought to question that the charge memo had been issued without proper approval of the competent authority and without issue of show cause notice as also having considered the representation of the applicant. It is further contended that it is the JCA, which is the only disciplinary authority. We also take note of the fact that the issue of res judicata has been raised by the learned counsel appearing for the respondents on the ground that the charge memo dated 15.11.1993 has been consistently the platform for all these legal contestation in the five earlier successive rounds, which have been considered and decided. Therefore, its validity cannot be questioned at the present moment..." 16. Since the Judgement of the High Court in Gopinath's case (supra) has been upheld by the Supreme Court and hence even the non-consideration of the Supreme Court Judgement does not in any manner effect the find....
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.... jurisdiction under Order 47 Rule 1 of CPC, it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise. [Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715.]. 15.4 The power of review can be exercised for the correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits specified in the statute governing the exercise of power. [Lily Thomas v. Union of India, (2000) 6 SCC 224.] 15.5 The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. [Inderchand Jain v. Motilal, (2009) 14 SCC 663.] Hence, it is invoked only to prevent a miscarriage of justice or to correct grave and palpable errors. [Shivdev Singh v. State of Punjab, AIR (1963) SC 1909.] 16. To wit, through a review application, an apparent error of fact or law is intimated to the court, but no extra reasoning is undertaken to explain the said error. The intimation of erro....
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....ar beyond the actual working out of prayers in a suit for partition. The order impugned has exceeded the jurisdiction of review by a court. 4.12 In the case of B V Star [2015 (324) ELT 634 (SC)] Hon'ble Supreme Court observed as follows: 4. It is qua this order, the rectification application was filed by the respondent. We find that the impugned order which is passed thereon does not amount to rectification of the earlier order, but an altogether different view is taken and, in fact, it amounts to review/recall of the earlier order and substituting it by a different order. This could not have been done in the application for rectification filed by the assessee. On this ground alone, impugned order dated 5-9-2006 is set aside and the earlier order dated 22-11-2005 is restored. We may clarify that the rectification would be limited only to the redemption fine. 4.13 In the case of Deva Metal Powders Pvt. Ltd. [2008 (9) S.T.R. 113 (S.C.)] following was observed by Hon'ble Supreme Court: "9. An error apparent on the face of the record for acquiring jurisdiction to effect rectification must be such an error which may strike one on a mere looking at the record and ....
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....ue that a mistake capable of being rectified under Section 22 is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by this Court in Master Construction Co. (P) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. 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 scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under Section 22, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rec....
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....able point cannot be said to be rectification of mistake apparent on record. 17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made before the CESTAT by the respondent-assessee while arguing the rectification application were also advanced before the CESTAT when the appeal was heard at an earlier stage. The arguments not accepted at an earlier point of time were accepted by the CES....
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....st 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 the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO v. Ashok Textiles, 41 ITR 732 that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. 22. For the aforestated reasons, we are of the view that the CESTAT exceeded its powers and it tried to re-appreciate the evidence and it reconsidered its legal view taken earlier in pursuance of a rectification application. In our opinion, the CESTAT could not have done so while exercising its powers under Section 35C(2) of the Act, and, therefore, the impugned order passed in pursuance of the rectification application is bad in law and, therefore, the said order is hereby quashed and set aside. T....