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TMI Blog2020 (10) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,06,74,012/- and for a sum of ₹ 22,81,004/- being the service tax due and payable by the petitioner for the period between May 2008 to March 2013 and April 2013 to March 2004 towards Supply of Tangible Goods within the meaning of Section 65 (105) (zzzz) of the Finance Act, 1994 as in force up to 01.07.2012 and thereafter towards declared services i.e., supply of transfer of tangible goods without transfer of right to use in terms of 66 E(f) with effect from 1.7.2017. 5. The petitioner filed reply to the above Show Cause Notice/Statement of Demand and denied the liability stating that the petitioner was providing goods transportation agents services within the meaning of Section 65(105)(zzp) and therefore service tax if any was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Demand. 8. At the time of personal hearing, the petitioner partially agreed that it was liable to pay tax only towards Supply of Tangible Goods , i.e., the lorries meant for transporting ready mix concrete and to the extent the GTA service was provided it was not liable to service tax. 9. Pursuant to the above, the respondent passed a detailed Order in Original SI No: 09/2015 dated 29.05.2015 and confirmed the demand of service tax of ₹ 1,29,55,016/- and interest under Section 75 of the Finance Act, 1994 and also levied penalty under Section 77 (1) (a) of the Finance Act, 1944 and a further penalty of ₹ 10,000/- under Section 77 (2) and a further penalty equivalent to an amount of tax not paid by the petitioner under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004-ST and 34/2004-ST dated 3.12.2004 the service tax was payable only on reverse charge other basis and that service tax was payable only by the recipient on 25% of the gross amount charged by the petitioner. 13. During the course of investigation, it appears that the petitioner was also called upon to furnish documents. Though summons was issued to the proprietor of the petitioner to furnish documents, no documents were furnished by the petitioner. After another summons was issued on 04.3.2013, the petitioner merely furnished Form 26AS which is the annual statement of account under Section 203 AA of the Income Tax Act, 1961 for the period between 2008-09 and 2011-12. 14. Since no the particular were furnished by the petitioner, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough Income Tax/Service Tax Commissionerate its recipient of the recipient of services. 17. 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. The Supreme Court in Assistant Commnr. Income Tax, Rajkot. Vs. Saurashtra Kutch Stock Exchange LTD., 2008 (230) E.L.T. 835 (SC)] has held that: An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arent on the face of record. 20. It is for the petitioner to move the tribunal by way of appeal against the order rejecting the application filed by the petitioner for alleged rectification of mistake under Section 74 of the Finance Act, 1994 an Order in OriginalSI No: 09/2015 dated 29.05.2015 merges with it. 21. In my view, it would not be open to the petitioner to bypass the appellate remedy under the Finance Act, 1994 by approaching this court under Article 226 of the Constitution of India. 22. Ultimately, the appellate Tribunal is empowered consider the facts and if required it can even remand the case back to the original authority to pass a fresh order. The Tribunal is the ultimate fact-finding authority. 23. It is for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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