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2020 ] S.J. MOVERS v. COMMISSIONER OF CENTRAL EXCISE, SALEM 31
12. The show cause notice has been issued pursuant to an investigation
carried out by the Headquarters Preventive Unit office of the respondent Com-
missionerate. During investigation it was the contention of the petitioner that
they were rendering only goods transportation services and therefore they were
not liable to pay tax and therefore in the light of Notification Nos. 35/2004-S.T.,
32/2004-S.T. and 34/2004-S.T., dated 3-12-2004 the service tax was payable only
on reverse charge 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 4-3-2013, the petitioner
merely furnished Form 26AS which is the annual statement of account under
Section 203AA of the Income-tax Act, 1961 for the period between 2008-09 and
2011-12.
14. Since no particular were furnished by the petitioner, the Directorate
of Revenue Intelligence (DRI) obtained the details from the persons who engaged
the services of the petitioner through their counterparts. The Ledger copies, work
order, the Bill raised in respect of the contracts entered by the petitioner with
various persons were thus procured. Thereafter, statement was recorded from
the proprietor of the petitioner who reiterated that the petitioner was merely en-
gaged in goods transportation services.
15. The Directorate of Revenue Intelligence (DRI) issued show cause
notice dated 23-10-2013 stating that the vehicles were supplied by the petitioner
on hire charges basis and therefore the petitioner was liable to pay tax. Thereaf-
ter, statement of demand referred to supra, was issued to the petitioner for the
subsequent period. The respondent Commissioner of Central Excise and Service
Tax adjudicated the show cause notice and passed Order-in-Original No. 7/2015
(ST-Commissioner), dated 29-5-2015, it was concluded that the services provided
by the petitioner was that of Supply of Tangible Goods without transfer of right
to use. Thus the petitioner was held liable to tax, interest and penalty during the
period in dispute.
16. The said order is a detailed order. There are no grounds to substan-
tiate that part of the service were that of goods transport agent services. The peti-
tioner 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 services.
17. If the petitioner is aggrieved, the petitioner should only file a statu-
tory appeal. The petitioner cannot expect the Court to exercise extraordinary ju-
risdiction 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. of Income Tax, Rajkot v.
Saurashtra Kutch Stock Exchange Ltd., [2008 (230) E.L.T. 385 (S.C.) = 2010 (18) S.T.R.
84 (S.C.)] 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 face of the record means an error which
strikes on mere looking and does not need long-drawn-out process of rea-
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