By TIOL News Service

MUMBAI, FEB 21, 2017: CST, Pune has filed a rectification application seeking rectification of what is claimed to be a mistake apparent from the record in the Final Order No. A/86241/STB dated 9th September 2015 - 2016-TIOL-853-CESTAT-MUM .

The CESTAT had concluded thus –

7. We find that there has been an erroneous computation in the impugned order leading to the incorrect conclusion that there is a shortfall in tax paid by the appellant. We do not find any short-payment of tax. Denial of the substantial benefit of abatement owing to availment of CENVAT credit of a mere of Rs.8,233/- does not appear to be equitable particularly as the amount has been made good. Following our decision cited supra, we hold that the reversal is sufficient to render the availment to be non-existent. Consequently, appellant is entitled to abatement as computed at the time of discharge of service tax in March 2006.

8. For the above reasons, the appeal is allowed and the impugned order set aside.

It is the Revenue contention that despite framing the following issue for determination -

'4. The dispute in the present appeal is limited to the alleged short-payment for the period from July to September 2006 and the disallowance of abatement under notification no. 1/2006-ST dated 1 st March 2006.'

and despite having rendered a finding on the stated issues, the Tribunal had proceeded, in the operative portion, to set aside the impugned order and allow the appeal.

The Bench observed -

"4. It would appear that applicant-Commissioner is apprehensive that the amount that had been paid voluntarily by assessee is also lost to Revenue by this omnibus order. That this fear is needless is apparent on various counts.

5. We have not accorded any consequential relief in our order. Had it been our intention to hold that the amount of Rs.5,77,095/- had been wrongly collected, a specific direction to grant consequential relief is a natural corollary. Without such direction, none, including the assessee, can justifiably conclude that this amount was also included in our final rendition of the operative part of the order. Such disallowance of the paid up amount as non-leviable was not intended or even communicated."

Castigating, in his inimitable writing style, the applicant-Commissioner the Member (Technical) writing the order for the Bench observed - The jurisdiction of the Tribunal is triggered only with the filing of appeal by an aggrieved party and it is activated only to the extent that an appellant submits to resolution by the Tribunal. …Therefore, the Tribunal is barred 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. Consequently, the operative portion of our final order, notwithstanding any peremptoriness, cannot be construed as having any aspect beyond the matter stated for determination, viz., alleged short-payment for the period from July to September 2006 and disallowance of abatement under notification no. 1/2006-ST dated 1 st March 2006.

And concluded thus –

"8. Hence, the operative portion of our order does not have to be seen as anything less or more than the decision rendered on the two issues stated for determination in the order itself. To reassure the applicant-Commissioner, we make this abundantly, and unambiguously, clear."

Holding that there is no merit in the contention of the applicant-Commissioner that there is an error apparent on the record, the Application was dismissed.

(See 2017-TIOL-530-CESTAT-MUM)