Page 95 - GSTL_3rd September 2020_Vol 40_Part 1

2020 ] S.J. MOVERS v. COMMISSIONER OF CENTRAL EXCISE, SALEM 29
error apparent on face of record as gross receipts including amount for Goods
Transport Agent services rendered - HELD : Said order is detailed order - If
petitioner aggrieved, petitioner should only file statutory appeal - Petitioner
cannot expect Court to exercise extraordinary jurisdiction under Article 226 of
Constitution of India to arrive at conclusion as to whether there was any error
apparent on face of record - By impugned writ petition, petitioner attempting
to avoid payment of pre-deposit under Section 35F of Central Excise Act, 1944
as made applicable to appeals under Section 83 of Finance Act, 1994 - Mere fact
that Tax Deductions at Source (TDS) may have been made by some of service
recipients under Section 194C and some under Section 194-I of Income-tax Act,
1961, may, ipso facto not justify conclusion of wrong assessment/demand of
Service Tax - No error apparent on face of record found - Petitioner may move
Tribunal by way of appeal against order rejecting application filed by peti-
tioner for alleged rectification of mistake under Section 74 of Finance Act, 1994
- Petitioner cannot bypass appellate remedy under Finance Act, 1994 by ap-
proaching Court under Article 226 of Constitution of India - No merits in pre-
sent writ petition - Article 226 of Constitution of India. - Ultimately, the Appellate
Tribunal is empowered to 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. [paras 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24]
Petition dismissed
CASES CITED
Assistant Commissioner of Income Tax v. Saurashtra Kutch Stock Exchange Ltd.
— 2010 (18) S.T.R. 84 (S.C.) = 2008 (230) E.L.T. 385 (S.C.) — Relied on................................. [Para 17]
REPRESENTED BY : Shri S. Durairaj, for the Petitioner.
Shri V. Sundareswaran, Sr. Standing Counsel, for
the Respondent.
[Order]. - Heard the Learned Counsel for the petitioner and the respond-
ent.
2. In this writ petition, the petitioner has challenged the impugned or-
der dated 5-11-2015 bearing Reference No. V/STG/15/139/2013-S.T. Adj, dated
5-11-2015 passed by the respondent. The petitioner seeks to quash the same and
to direct the respondent to pass an order rectifying the error apparent on the face
of record.
3. The impugned order has been passed by the respondent pursuant to
an application filed by the petitioner under Section 74 of the Finance Act, 1994
holding that there is no error apparent on the face of record while passing Order-
in-Original Sl. No. 09/2015, dated 29-5-2015.
4. Earlier the petitioner had been issued with a Show Cause Notice No.
94/2013, dated 23-10-2013 and a further Statement of the Demand [No.] 35/2013,
dated 23-3-2015. The above Notice/Statement of Demand called upon the
petitioner to pay an amount of Rs. 1,06,74,012/- and for a sum of Rs. 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 Tan-
gible Goods’ within the meaning of Section 65(105)(zzzz) of the Finance Act, 1994
as in force up to 1-7-2012 and thereafter towards declared services i.e., supply of
transfer of tangible goods without transfer of right to use in terms of Section
66E(f) with effect from 1-7-2017.
5. The petitioner filed reply to the above Show Cause Notice/Statement
GST LAW TIMES  3rd September 2020  111