HIGH COURT OF PUNJAB AND HARYANA,
Commissioner of Central Excise Commissionerate, jalandhar
v.
Onkar Travels (P.) Ltd.
SATISH KUMAR MITTAL AND RAKESH KUMAR GARG, JJ.
C.E.A. NOS. 169 OF 2006 AND 93 OF 2007
January 17, 2008
Section 74, read with section 73 of the
Finance Act, 1994 - Rectification of
mistake - Deputy Commissioner issued a show cause notice to assessee under
section 74 to enhance assessment on allegation that short levy of service tax
was made on assessee and, therefore, confirmed demand of service tax and
penalty - Commissioner(Appeals) also upheld order of original authority -
However, Tribunal observed that provision of section 74 was not applicable in
facts of instant case as there was no apparent mistake in assessment which had
become final under section 71 and set aside impugned order - In instant appeal,
appellant revenue submitted that actually, show cause notice was to be issued
under section 73, but inadvertently, provision was wrongly mentioned as section
74 and revenue submitted and merely because revenue authority had issued show
cause notice under wrong provisions will that not debar revenue authority from
assessing escaped taxable service - Whether since such plea was never taken by
appellant either before appellate authority or before Tribunal, and rather before
Tribunal, department had categorically taken stand that revenue authority was
within its power to pass impugned order under section 74, such question could
not be permitted to be raised for first time in instant appeal - Held, yes -
Whether, therefore, appeal was to be dismissed as there was no question of law
arose from order of Tribunal - Held, yes - [para 6]
The assessee,
air travel agent had filed its half yearly and quarterly returns. The Deputy
Commissioner issued a show cause notice to the assessee under section 74 to
enhance the assessment on the allegation that short levy of service tax was
made on the assessee and he accordingly confirmed the demand along with penalty
of Rs.1,000 on the assessee. On appeal, the Commissioner (Appeals) upheld the
order of the Deputy Commissioner. However on further appeal, the Tribunal
observed that provisions of section 74, which pertains to rectification of a
mistake, was not applicable in the facts of the instant case as there was no
apparent mistake in the assessment which had become final and set aside the
impugned order.
In instant
appeal, the appellant-revenue submitted that the department had inadvertently
mentioned section 74 in place of section 73 and merely because the revenue
authority had issued show cause notice under the wrong provisions that will not
debar the revenue authority from assessing the escaped taxable service.
HELD
The notice was
given under section 74. The order confirming the demand and imposing a penalty
upon the respondent-assessee was passed by the Deputy Commissioner under
section 74. Before the Commissioner (Appeals) as well as the Tribunal, the
department had taken the stand that the revenue authorities had rightly passed
the order assessing the escaped service tax by invoking the provision of
section 74. Even before the Tribunal, the same stand was taken. For the first
time, in the instant appeal, the revenue had taken the stand that actually, the
show cause notice was to be issued under section 73, but inadvertently, the
provision was wrongly mentioned as section 74. Such plea was never taken by the
revenue either before the appellant authority or before the Tribunal and rather
before the Tribunal, the department had categorically taken the stand that the revenue
authority was within its power to pass the impugned order under section 74.
Undisputedly, section 74 pertains to rectification of the mistake in the order
and a rectification can only be made by the same Authority if the mistake is
apparent on the record. In the grounds of appeal, the revenue had taken the
stand that provision of section 74 was not applicable. Therefore, the only
stand was that in the notice as well as the orders passed by the Authorities
below, section 74 was inadvertently mentioned instead of section 73 that
question could not be permitted to be raised for the first time in the instant
appeal.
Only those
substantial questions of law were to be considered and decided by the Court,
which were arising from the order of the Tribunal. In the instant case, since
no such argument was raised before the Tribunal, no such substantial question
of law arose from the order of the Tribunal. Therefore, there was no any ground
to entertain instant appeal, and accordingly, the same was to be
dismissed. [