Page 98 - GSTL_3rd September 2020_Vol 40_Part 1

32 GST LAW TIMES [ Vol. 40
soning on points where there may conceivably be two opinions. Such error
should not require any extraneous matter to show its incorrectness. To put
it differently, it should be so manifest and clear that no Court would permit
it to remain on record. If the view accepted by the Court in the original
judgment is one of the possible views, the case cannot be said to be covered
by an error apparent on the face of the record.”
18. By this writ petition, the petitioner has attempted to avoid payment
of pre-deposit [under] Section 35F of the Central Excise Act, 1944 as made appli-
cable 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. Further, the Finance Act, 2014 has rationalised the amount of pre-
deposit to a mere 7.5% of the disputed tax at the stage of 1st appeal. Therefore,
the petitioner cannot avoid pre-deposits of 7.5% of the disputed tax required for
filing appeal by filing this writ petition.
19. 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 Sec-
tion 194-I of the Income-tax Act, 1961, may, ipso facto would not justify the con-
clusion that there was the wrong assessment/demand of Service Tax. There is no
error apparent 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 recti-
fication of mistake under Section 74 of the Finance Act, 1994 an Order-in-Original
Sl. No. 09/2015, dated 29-5-2015 merges with it.
21. In my view, it would not be open to the petitioner to bypass the ap-
pellate 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 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.
23. It is for the petitioner to establish before the Customs, Excise and
Service Tax Appellate Tribunal (CESTAT) that indeed it provided goods
transport agent service and that the recipient were liable to pay tax on such ser-
vices and not that of Services of Tangible Goods.
24. I find no merits in the present writ petition. Petitioner is therefore
given a liberty to file an appeal within a period of 30 days from the date of re-
ceipt of copy of this order before the Customs, Excise and Service Tax Appellate
Tribunal (CESTAT) together with the deposit of 7.5% of the disputed tax. In case
such an appeal filed by the petitioner, the CESTAT has requested to admit the
appeal without insisting on limitation though the petitioner wrongly altered the
trajectory of the proceedings by invoking Section 74 of the Finance Act, 1994 and
thereafter before this Court.
25. This writ petition stands dismissed in the light of the above obser-
vation. No cost. Consequently, connected miscellanous petition is closed.

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GST LAW TIMES  3rd September 2020  114