ST - What has been recorded in order is submission made by DR and is not finding or conclusion by Tribunal - ROM filed by applicant on ground that contents of paragraph would damage their reputation is dismissed: CESTAT
By TIOL News Service
MUMBAI, MAR 18, 2015: IN this case concerning a demand of a whopping amount of Service Tax of Rs.6.59 Crores, the CESTAT while deciding the appeal - 2014-TIOL-1873-CESTAT-MUM held -
ST - Commercial training or Coaching service - In view of retrospective amendment by the FA, 2010, issues relating to institutes registered as trust or society, whether for profit or not, has been resolved - All institutes, whether charitable or not come within the scope of taxable service if the courses are not recognized by law and a consideration is charged for the services rendered - postgraduate courses in management will not come under vocational training & therefore, benefit of exemption notification 9/2003-ST, 24/2004-ST not available - invocation of extended period of time cannot be faulted at all as there has been no undue delay on the part of the department either in completing the investigation or in issue of show cause notice - plea of bonafide belief is not substantiated - demand confirmed along with interest - errors pointed out in computation by not excluding some receipts is allowed - as matter relates to classification dispute, penalty u/s 78 set aside: CESTAT
The appellant is unhappy with this order, not the demand portion though , and have, therefore, filed an application for rectification of mistake.
The applicant submits that para 4.6 of the impugned order needs to be deleted as it is incorrect to say that the appellant collected service tax from the students but did not remit the same till the investigation was conducted;that Para 4.6 read with para 5.9 of the impugned order gives an impression that the appellant collected service tax but failed to remit the same to the exchequer.
The applicant further submits that the factual position is that as and when they collected the service tax, they remitted the same to the exchequer and, therefore, they apprehend that such a paragraph in the order would damage their reputation.
The AR submitted that he stands by the submissions recorded in para 4.6 and further points out that if such issues are taken up by way of rectification of mistake, it would create a bad precedent as every contention raised by the department could be challenged by way of rectification of mistake application.
The Bench observed -
"3.1 As regards para 4.6, in the said para we have recorded the contention submitted by the learned DR during the course of arguments. So long as the same is not disputed by the DR, we cannot delete the said para. Para 4.6 merely records the contention raised by the DR on the matter and is not a finding or conclusion drawn by the Tribunal.
3.2 As regards para 5.9, in the said para we have given consideration to the various contentions raised by both the sides and thereafter came to the conclusion that the plea of the bonafide belief claimed by the appellant cannot be accepted. Thereafter in para 5.10, we have recorded that the appellant has collected service tax from the students who attended the various courses and have remitted the same to the exchequer. Therefore, the question for consideration was only making the payment under protest and nothing more and hence, the question of demand being time barred would not arise."
Holding that there is no reason to rectify/modify its order, the CESTAT dismissed the ROM application as not maintainable.
In passing: Reputation is only a candle, of wavering and uncertain flame, and easily blown out, but it is the light by which the world looks for and finds merit - James Russell Lowell .
(See 2015-TIOL-496-CESTAT-MUM )
