TaxTMI 
TaxTMI 
2024 (3) TMI 1555
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.... Depended on the language used in the two permission letters dated 11.09.2003, 08.10.2004 issued to the appellant by VSNL and the license dated 11.08.2005 granted to the appellant uplink the program of the two TV channels viz. SS Music and Sur Sangeeth to conclude that these channels are owned by the appellant. (ii) The Appellants accounts said to be indicating collection of airtime allotment charges was relied upon in support of the finding recorded on merits to dismiss their claim that they do not provide the broadcasting services. (iii) The evidence produced in the form of trade mark ownership was also rejected approving the order of the original authority. (iv) The service tax registration number of the two companies viz. Fortune Media Pvt. Ltd., and Mind Scape creations Pvt Ltd., who are admittedly separate juristic entities not disputed by the respondent in the proceedings held before her, besides submitting that the classification of the service could not be decided based on the entries made in their financial records as also the fact of the revenue omitting to fix the classification under the particular clause of the entry. Thus, there are apparen....
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....there cannot be two persons namely the above channel owners as well as the appellant to be held liable for service tax on the same service and in respect of the same programs. (ix) The finding recorded in para 11 of the final order to the effect that "on perusal of the Notes on Accounts for the year ending 31.03.2006 under the head Expenses in Foreign Currency it is seen mentioned as expense of Rs.62,10,000/- towards renting of satellite. Such expenses towards renting of satellite can only be incurred for the purpose of broadcasting" is again an apparent error as the payment towards renting of satellite charges is very much within the scope of the up-liking services as without the use of the satellite the up-linking of the programs are not possible. (x) The findings recorded by the Tribunal even though for the limited purpose of sustaining the extended period by placing reliance on the signature of one Shri B.D. Ramesh Babu, President contained in the Memorandum of Appeal as the authorised signatory of the appellant, a public limited company filed in the year 2013 by comparing it with his signature contained in the agreement entered into Fortune Media Pvt Ltd., a ....
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....g exclusion of certain income/receipt from the determination of the taxable value against the notice quantifying the entire receipts as taxable value which were not at all considered in passing the impugned order is an apparent error on the face of the record and which needs to be rectified in the interest of justice. (xiv) The evidences produced by the appellant before the adjudicating authority as well as before this Hon'ble Tribunal providing year wise break up of their income and their explanations contained in paras 9, 11 & 14 of their additional submissions supported by a certificate of an independent Chartered Accountant to claim exclusion of certain value from the computation of taxable value which were not at all considered or any finding recorded by this Hon'ble Tribunal whereas the demand has been confirmed on the entire value as indicated in the show cause leading to the error apparent on the face of the record. (xv) The Tribunal failed to take note that the respondent did not contest the claim for exclusion from the computation of the taxable value in every year in which case the mater ought to have at least been remanded to the respondent for....
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....cumstances can recall its own order for rectification of mistake and there is no absolute prohibition and the present case is one of such case considering the facts and circumstances, clearly showing the apparent error on fact and law on the face of the record which needs to be rectified in the interest of justice. ii) Sree Daksha Properties Pvt. Ltd. Vs. Commissioner of Central Excise, Coimbatore reported in 2016 (44) STR 236 (Mad.) has held that non-consideration of the documents /grounds submitted or made out along with appeal / reply necessarily results in rectification of the order passed and the ratio laid down squarely applies to the facts and circumstances of the case of the petitioner warranting rectification of the error which is apparent on the face, by the Tribunal. The following judgments were also attached to their rectification application though the operative portion of the judgment or the reason for relying upon them was not mentioned in their application. a. Honda Siel Power Products Ltd. [2008 (221) ELT 11 (SC)]. This judgment was referred to in Latchaman Dass Bhatia (supra). b. Roots Multi-clean Ltd. [2016 (336) ELT 25 (Mad.)] ....
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....es functus officio [ceases to have control over the matter]. Such a judgment or order being `final' cannot be altered, changed, varied or modified by the Authority itself. Departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. An amendment of the order must hence be subject to a strict interpretation of the Act / Rules and legal principles as evolved through pronouncements of Constitutional Courts and cannot be entertained lightly. Amendment of the earlier order cannot be done unless the Tribunal is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. It should be something like a glaring omission or patent mistake or grave error that has crept in due to judicial fallibility while deciding the appeal. The mere possibility of two views on the subject is not a ground for exercising the power under Sec 35C (2) ibid as made applicable to Service Tax appeals. Since the Appellant has submitted a lengthy application with many points which they feel are errors that requires rectification, it would be proper to examine the scope of....
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....SCC 750 at page 754] has held that this power of correction is neither a power of review nor is a power of revision but is only a power to rectify a mistake apparent on the face of the record. Rectification implies the correction of an error or a removal of defects or imperfections. It implies an error, mistake, or defect which after rectification is made right. In Sree Daksha Property Developers Pvt Ltd VS C.C.E., Coimbatore [2016 (44) S.T.R. 236 (Mad.)] the Hon'ble High Court of Madaras held that if the records produced by the petitioner have not been taken into consideration and examined it is undoubtedly an error apparent on the face of the record. In Commissioner of Central Excise, Calcutta v. ASCU Limited, Calcutta, [(2003) 9 SCC 230] the Apex took the view that the scope of correction which can be made by the Tribunal is limited. It was held that if a decision is based solely on the material which is irrelevant or which could not have been used then possibly it could be said that there is a mistake apparent from the record but, however, if a decision is based on more than one material, then merely because in the process of arriving at the final decision, reliance was pla....
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....e so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications. Rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the interveners intend in the present case is precisely substitution of the reference order which according to law is not permissible under the provisions of the Act. (emphasis added) The views expressed in various judgments cited by the rival parties are encapsulated in the above decisions and are not being all referred to for the sake of brevity. 7. The principles that emerge from the above judgments are; i) Rectification of Tribunal's mistake, error or omission and which error is a manifest error, has nothing to do with the inherent powers of the Tribunal. It is neither a power of review nor is it a power of revision. The purpose behind the enactment is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer....
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....made out by the Appellant and mentioned at para 2 above, apart from being lengthy and complicated arguments, try to project that our findings, conclusions, observations, non-remanding of matter to lower authority, approving the extended period and even in cases where we have considered facts but reached a conclusion not agreeable to the Appellant, are errors on the face of the record. A decision in appeal, is arrived at by examining the evidence in totality, its collaborative value, the averments of the rival parties, the merits of the rebuttal and the satisfactory discharge of the shifting onus of proof by the rival parties. The averments above, prima facie goes beyond the scope of our powers to amend a mistake, as at best they relate even when viewed through the Appellants point of view, to be 'judgmental errors' i.e. errors in reasoning or applying law and are inadmissible for rectification in the light of the above judicial decisions. 9. We however examine the issues at para 2 (x) (xii) and (xiv) above which may be said to allude to errors on the face of the record. It is also noted that the Appellant had not sought our permission to place any fresh evidence for admi....
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....ssary equipment to uplink the channels belonging to third parties which does not in any way could result in the conclusion that the appellant had provided the taxable broadcasting services. ***** ***** ***** ***** ***** ***** 22. The learned lower adjudicating authority also failed to consider the subtle ground canvassed by the appellant herein that the notice having claimed that the appellant at least ought to have discharged the tax on the incomes accounted for in their financial statements 2006-07 under the Business Support Service, which amounts admittedly pertained to the billings made during the previous financial year when their services were not taxable clearly exposing the weakness of the revenue's case so far as it related to the allegation that they have rendered the taxable broadcasting services and accordingly also ought to have held the notice not sustainable in law. 23. The learned lower adjudicating authority also ought to have considered the submission of the appellant herein that the note appended to the work sheet annexed to the show cause notice is self-serving in nature as they had only received the up-linking income and never the air t....
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....appreciation of evidence, as averred by the Appellant in the paras above are subjective matters. They do not deal with an area which can be considered as our omission of considering material particulars. Hence there is no manifest error on our part which is a visible mistake apparent from the record in the nature of a glaring omission or patent mistake or grave error and it may, if at all for the sake of discussion, be referred to as 'judgmental errors' and hence will not come under the cross hair of a clear error on the record, which is amendable under 35C (2) ibid. 11. The appellant submits that the issue on limitation was contested in their memorandum of appeal stating that the notice was not served on them within the maximum time permitted under Sec. 11 A of the Act in the manner as contemplated under Sec 37 C of the Central Excise Act and hence merits being set aside and that it was supported by the judgment of the Hon'ble Bombay High Court in Soham Realtors Pole Star Vs Commissioner of C.Ex., Cus & ST, Nagpur, [2018 (12) GSTL 288 (Bom.)] which was not considered at all by the Tribunal leading to the error apparent creeping in the impugned final order warranting....