2020 (10) TMI 775 - HC - Service Tax

Rectification of error - error apparent on the face of record - Section 74 of the Finance Act, 1994 - GTA service or Supply of Tangible Goods without transfer of right to use - reverse charge mechanism - summons issued for production of documents which were not done - evasion of pre-deposit - HELD THAT - There are no grounds to substantiate that part of the service were that of goods transport agent services. The petitioner had also not co-operated during the investigation and therefore DRI was able to issue the Show Cause Notice only after procuring records through Income Tax/Service Tax Commissionerate its recipient of the recipient of services. If the petitioner is aggrieved, the petitioner should only file a statutory appeal. The petitioner cannot expect the court to exercise extraordinary jurisdiction under Article 226 of the Constitution of India to arrive at a conclusion as to whether there was any error apparent on the face of record as the order is detailed. By this Writ Petition, the petitioner has attempted to avoid payment of pre-deposit Section 35F of the Central Excise Act, 1944 as made applicable to appeals under the Finance Act, 1994. The petitioner has an alternate remedy before the Customs Excise and Service Tax Appellate Tribunal (CESTAT) which is a more effective remedy though it would involve a pre-deposit - The mere fact that Tax Deductions at Source (TDS) may have been made by some of the service recipients under Section 194C and some under Section 194I of the Income Tax Act, 1961, may, ipso facto would not justify the conclusion that there was the wrong Assessment/Demand of Service Tax. There is no error apparent on the face of record. Petition dismissed.

Summary

Issues:
Challenge to impugned order dated 05.11.2015, Seeking quashing and rectification of error apparent on the face of record.

Analysis:
1. The petitioner challenged the impugned order of the respondent dated 05.11.2015, seeking to quash the same and rectify an error apparent on the face of the record. The impugned order was passed pursuant to an application filed by the petitioner under Section 74 of the Finance Act, 1994. The respondent held that there was no error apparent on the face of the record while passing the original order dated 29.05.2015.

2. The petitioner was issued a Show Cause notice and a Statement of Demand for payment of service tax for the period between May 2008 to March 2013 and April 2013 to March 2004. The petitioner denied the liability, claiming to provide goods transportation agent services, which were not taxable in their hands. The petitioner also cited exemptions under relevant notifications.

3. During the personal hearing, the petitioner partially admitted liability for tax only towards the supply of tangible goods, not for GTA services. Subsequently, the respondent confirmed a demand for service tax, interest, and penalties. The petitioner then filed an application questioning the quantification of the demand, arguing discrepancies in the basis of calculation.

4. The Court observed that the petitioner had not cooperated fully during the investigation, leading to the issuance of the Show Cause notice based on information obtained indirectly. The respondent's order detailed the findings and upheld the tax liability. The Court emphasized that the petitioner should have appealed the order instead of seeking extraordinary jurisdiction under Article 226.

5. The Court highlighted that errors apparent on the face of the record should be manifest and not require extraneous matters to demonstrate their incorrectness. It noted that the petitioner's attempt to avoid pre-deposit under Section 35F of the Central Excise Act by filing the writ petition was not justified. The Court directed the petitioner to pursue the appellate remedy before the Customs Excise and Service Tax Appellate Tribunal (CESTAT).

6. Ultimately, the Court dismissed the writ petition, granting the petitioner liberty to file an appeal before CESTAT within 30 days from the date of the order, along with a deposit of 7.5% of the disputed tax. The Court emphasized that the Tribunal was the ultimate fact-finding authority, and the petitioner needed to establish its case before CESTAT regarding the nature of services provided and the tax liability of the recipients.