The Bombay High Court has dismisses Writ Petition by Board of Control for Cricket in India (BCCI) against CESTAT’s rejection of ‘Rectification Application’ without ‘Mistake Apparent from Record’.
The petitioner, BCCI is a society registered under the Tamil Nadu Societies Registration Act, 1975 and is also registered under the Finance Act, 1994 (Service Tax). On 21st January 2008, the petitioner entered into an agreement, for grant of Media Rights, with MSM Satellite (Singapore) Pte. Ltd. and World Sport Group (India) Pvt. Ltd. for telecast of Indian Premier League (IPL) Matches.
The agreement was superseded by an agreement dated 25th March 2009. On 14th October 2009, four show cause notices were issued for the periods between 2007-08 and 2011-12. The issue raised in the show cause notices were whether the petitioner is engaged in rendering the “franchisee” services and whether the services rendered under the aforesaid agreement constitutes the “export of service” under the Export of Service Rules, 2005.
The BCCI filed a reply to the show cause notice. On 19th August 2015, the aforesaid show cause notices came to be adjudicated and the Order-in-Original was passed rejecting the contention of the petitioner that they are engaged in export of service and furthermore, the services of the petitioner constitutes “franchisee services” as defined under the Service Tax.
The BCCI made an application, under Section 35C(2) of the Central Excise Act as made applicable to the Service Tax by virtue of Section 86(7) of the Finance Act, 1994, for rectification of mistake in the order dated 10th December 2018. On 2nd December 2019, Tribunal dismissed the rectification application holding that the petitioner is seeking to review the findings recorded in the original order which cannot be the subject matter of rectification of mistake.
The court held that Section 35C (2) read with Section 83 of the Finance Act, 1994 empowers the Tribunal to rectify the order only on mistakes which are apparent from record. The phrase ‘mistake apparent from record’ has been explained by the Supreme Court as far back as in the year 1971 in case of T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay Vs. Volkart Brothers & Ors.2 wherein the Supreme Court held that a debatable point of law cannot constitute a mistake apparent from the record on which two opinions are conceivable, it cannot be said to be an error apparent on the face of the record.
n the present case as observed by us above, none of the errors agitated constitutes mistake apparent from record.
Case Title: BCCI V/s Commissioner of Service Tax
Citation: WRIT PETITION NO.1987 OF 2022