ST - Once by detailed findings, Tribunal concluded that services are classifiable under BOFS, there is no purpose to discuss whether claim of appellant for classification under Telecommunication services is correct or not: CESTAT
By TIOL News Service
MUMBAI, OCT 18, 2016: THE applicant Union Bank of India has filed a ROM application for rectification in the final order dated 11/1/2016 - 2016-TIOL-261-CESTAT-MUM passed by this Tribunal.
The issue involved in the appeal was demand of service tax on the services of transmission of financial messages through SWIFT services.
The Tribunal had in its referred order, while partly allowing the appeal of the appellant and the Revenue had held that -
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(a) In Appeal No. ST/39/2011, demand for the period prior to 18/4/2006 was rightly dropped in impugned order as held in para 7.4 of the Tribunal Order in case of Bank of Baroda - 2016-TIOL-216-CESTAT-MUM by relying upon the judgment in case of Indian Ship Owners Association case - 2009-TIOL-150-HC-MUM-ST, hence Revenue's appeal is dismissed.
(b) In Revenue's Appeal No. ST/84884/13 the demand of Service tax confirmed by the Adjudicating authority was set aside by the Ld. Commissioner (Appeals). As per judgment in Bank of Baroda case - 2016-TIOL-216-CESTAT-MUM, the service tax is correctly payable by the Union Bank of India, hence the Commissioner's order dated 19.11.12 is set aside to the extent the service tax was dropped, however waiver of penalties is maintained invoking Section 80 being the issue involved is of interpretation of the law. Thus the Revenue's Appeal is partly allowed.
(c) In Assessees' Appeal Nos. ST/73 & 74/11, demand of Service Tax is maintained and penalties are waived invoking Sec 80 of the Act being issue involved is of interpretation of definition of "Banking and Other Financial Services". Thus, the Assessees' appeals are partly allowed.
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It is submitted by the applicant that the Tribunal had failed to record the reasons on the applicant's ground of classification under Telecommunication series& also failed to distinguish the applicant's case with Bank of Baroda case (supra) with respect to charges of suppression.
The AR inter alia submitted that the Tribunal had categorically held that the services are correctly classifiable under BOFS and hence there was no need to discuss whether the same service is classifiable in any other category; in the matter of invocation of extended period, the detailed finding in paragraph 7.6 of the BoB case was relied upon, therefore, there is no scope for any rectification in the order.
The Bench observed -
"5. We find that appellant have raised two issues for rectification of the order of this tribunal i.e. (a) claim of the applicant on the services namely telecommunication services and (b) invocation of extended period for demanding service tax. As regard the first issue, we find that detailed order was passed by which the service was held to be classifiable under the category of "Banking and Other Financial Services". Once by detailed findings, the tribunal concluded that the services is classifiable under banking and other financial services, there is no purpose to discuss that whether the claim of the appellant on the services of telecommunication services is correct or not. Therefore by classifying the services in question under banking and financial services it stands concluded that the telecommunication services as claimed by the appellant is not relevant. As regard the issue of limitation, the fact and circumstances of the present case as well as case of the Bank of Baroda are absolutely identical. In the Bank of Baroda case which was solely relied upon in this case, in para 7.6 it was clearly discussed that even though the penalty is not imposable under Section 80 but as per first proviso to Section 73 which is independent to Section 80, extended period can be invoked. As per our above discussion, we find that applicant could not make out the case for rectification of mistake in the order as no mistake is apparently arising out of such order…."
The ROM application was dismissed.
(See 2016-TIOL-2717-CESTAT-MUM)
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