2018 (11) TMI 842 – CESTAT MUMBAI – TMI – Rectification of mistake – section 35C(2) of Central Excise Act, 1944 – Held that:- The decision of the Government of India supra is neither binding on us nor should be so construed as to deny the present application which seeks a limited relief within the scope of section 35C(2) of Central Excise Act, 1944. That opinion was also not available to persuade the Tribunal in composing the final order, now sought to be rectified, that was rendered.
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Doubtlessy, numerosity adaptation effect should not influence judicial decisions but it would do well for the applicant Commissioner not to be oblivious of the congruity of cognition on 'duty free' supplies and to forbear from projecting any dissonance with the decision of the Tribunal as lapsus calami.
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There are no mistakes apparent in the record, as well as in the decision of the Tribunal, to warrant rectification – application dismissed. – APPLICATION NOS: ST/ROM/85493, 85498 to 85504/201
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Act, 1994. 2. Narrating the contours of the dispute as presented during the appeal proceeding, not warranting elaboration here, Learned Authorised Representative referred to paragraph 13 to 20 and to paragraph 26 of the final order of the Tribunal which, according to him, placed unwonted emphasis on 'taxable territory' to arrive at the conclusion that tax was collected from M/s Flemingo Duty Free Shops P Ltd without authority of law and thereby exceeded the scope of appeal which was limited to the determining of the activity of M/s Flemingo Duty Free Shops P Ltd as export of goods. He also pointed out that the present application, by relying upon the definition of 'India' in section 65B(27) of Finance Act, 1994 and section 2(27) of Customs Act, 1962, also sought rectification of that mistaken conclusion. Furthermore, according to him, the frontiers of taxable territory having been decided upon by the Hon'ble Supreme Court in Aban Loyd Chiles Offshore Ltd v. Union o
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e shops' are outside the 'taxable territory' should not, by any measure of propriety, be maintainable before us. We do not propose to dilate on that submission in the present application. 4. Rebutting the alleged mistakes enumerated in the present application, Learned Chartered Accountant representing the respondent adverted that it was Revenue which was at variance with the findings of the two lower authorities, who, with no trace of ambiguity, had held the transactions of 'duty free shops' in 'international airports' to be export of goods entitling the respondent to rebate of tax paid on services received by an exporter and used for export of goods, as envisaged in notification no. 41/2012-ST dated 29th January 2012, and that, in the face of such obdurate refusal to accept the logical reasoning adopted in the impugned order, the Tribunal was compelled to drive the point home in no uncertain terms even by indulgence in theoretical exercise. It was also poin
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pered by further repetition of these oft-reiterated submissions can hardly be labelled as manifest mistake. In confirming the orders of the lower authorities, the Tribunal has impliedly adopted the record of those proceedings as the submissions of Learned Authorized Representative were by no means novel. The cavil of the applicant-Commissioner that the written submissions were not detailed in the order of the Tribunal is borne out by the records but that these were not considered, or that an entirely different outcome may have emerged, is not so apparent. The order of the Tribunal has, with approval, referred to the findings of the lower authorities thus obviating the need for further demonstration of. the submissions having been considered. Needless to say, it is a fallacy to equate narration or assertion with acceptable disposal of submissions. 6. All that remains for disposal is the allegation of taint of mistake in the foray of the final order of the Tribunal into 'taxable terr
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nsequent upon the paradigm shift to 'negative list'-an imperative in the context of an intangible levy on that which, a metaphorical palimpsest, is sensible only in the recipient. Till then, the tax laws of the country did not ever require this crutch. It is, therefore, inappropriate on the part of Learned Authorized Representative to suggest that the Hon'ble Supreme Court in re Aban Lloyd Chiles Offshore Ltd, while resolving a dispute on the geographical jurisdiction for levy of tax on tangible goods, did draw the circle within which 'taxable territory' would lie. For the purposes of Finance Act, 1944, with effect from 1st July 2012, 'taxable territory' has a connotation and 'India' has a distinct definition; the equating of the two may well suit the applicant-Commissioner but inappropriate citing would not advance that cause. 8. As to whether that reasoning, if it did impact upon the confirmation of the orders of the two lower authorities, was corr
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urt in Hotel Ashoka v. The Assistant Commissioner of Commercial Taxes and Anr [(2012) 3 SCC 204] as well as section 2 (27) of Customs Act, 1962, goes on to state that 13 In view of aforementioned findings of the Hon'ble Supreme Court, the definition of Section 2 (27) of the Customs Act 1962 would not apply, when seen in the context of levy Customs duty (sic) or imposition of Taxes on any transaction effected at Duty Free shop located in the Customs Area beyond and outside the Customs Frontiers of India… 14. Therefore, the Central Government, in view of the above holds that the transactions effected at the Duty Free Shops at the arrival or departure of the International Airports in India, might have taken place within the geographic territory of India, but for the purposes of levy of Customs Duties or any other taxes, the area of Duty Free shops shall be deemed to be the area beyond the customs frontiers of India…. 9. The decision of the Government of India supra is neither
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