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2023 Supreme(Bom) 1423
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. Kulkarni, Jitendra Jain, JJ.
The Board of Control for Cricket in India (BCCI) - Petitioner
Versus
Commissioner of Service Tax-1, Mumbai - Respondent
Writ Petition No.1987 of 2022
Decided On : 01-08-2023
Advocate Appeared:
For the Petitioner: Mr.Sriram Sridharan
For the Respondent: Mr.Jitendra Mishra a/w Mr.Satyaprakash Sharma
Headnote:
Constitution of India, 1950 – Article 226 – Export of Services Rules, 2005 – Tamil Nadu Societies Registration Act, 1975 – Central Excise Act, 1944 – Section 35C(2) – Finance Act, 1994 – Section 86(7) – Matter of rectification proceedings – Whether petitioner is engaged in rendering “franchisee” services and whether services rendered under aforesaid agreement constitutes “export of service” under Export of Service Rules, 2005 – Held, In circumstances, according to CESTAT, decision of department to appoint a Cost Accountant to ascertain value of goods manufactured by asessee was considered to be just and proper – However, after considering submissions made in pursuance of rectification application, CESTAT came to a different conclusion to effect that asessee company and buyer of goods were not inter-connected companies – Different conclusions were arrived at by CESTAT because it reappreciated evidence in relation to common directors among companies and inter se holding of shares by companies – Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record – Petition dismissed.
JUDGMENT :
Jitendra Jain, J.
Rule. Rule made returnable forthwith. Mr.Mishra waives service on behalf of the respondent. By consent of the parties heard finally.
2. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks following reliefs :-
“(a) that this Hon’ble Court be pleased to issue a Writ of Certiorari or any other Writ, order or direction under Article 226 of the Constitution of India to quash and set aside the impugned Order dated 02.12.2019 (Exhibit-A) issued by the Respondent No.2 after going into the validity and legality thereof;
(b) that this Hon’ble Court be pleased to issue a Writ of Certiorari or any other Writ, order or direction under Article 226 of the Constitution of India to allow the Rectification Application No.85434, 85436, 85437, 85348/19 filed by the Petitioner before the Customs, Excise and Service Tax Appellate Tribunal and to grant the Petitioner the consequential reliefs thereof;
(c) that this Hon’ble Court be pleased to issue a Writ in the nature of Mandamus or any other Writ, order or direction under Article 226 of the Constitution of India directing the Respondent No.2 to read judicate the Rectification Application Nos.85434, 85436, 85437, 85348/19 as per law.”
3. Brief facts in the present petition are as under :-
The petitioner 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 said 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 petitioner 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.
4. Being aggrieved by the aforesaid Order-in-Original, the petitioner filed an appeal before the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (for short “the Tribunal”). On 10th December 2018, the Tribunal disposed of the aforesaid appeal by a detailed order running into 100 pages. The Tribunal dismissed the appeal of the petitioner and gave a finding that the services had been rendered in India and therefore, does not qualify as Export of Services. The Tribunal also analyzed the period of dispute under consideration between pre 27th February 2010 and post 27th February 2010, on which date, the Export of Services Rules, 2005 were amended.
5. Being aggrieved by the Tribunal’s order, the petitioner 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.
6. Being aggrieved by the above said order of the Tribunal dated 2nd December 2019, the petitioner has approached this Court by filing a writ petition under Article 226 of the Constitution of India to contend that
