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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 ..... ent 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 SI No: 09/2015 dated 29.05.2015. 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 dated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner also furnished TDS certificates evidencing deduction under Section 194 C and 194I of the Income Tax Act, 1961 and therefore requested for requantification of the tax. The reply filed by the petitioner did not clearly spell out the reasons as to why the tax was not payable except for mere denial of tax liability and based on TDS certificate under Section 194C and 194I of the Income Tax Act, 1961. The reply merely dealt with the interpretation law without dealing with the factual allegations in the Show Cause Notice and the Statement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner. 11. I have perused the records and considered the arguments advanced on behalf of the petitioner and the respondent. 12. The Show Cause notice has been issued pursuant to an investigation carried out by the Headquarters Preventive Unit office of the respondent Commissionerate. 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- ST, 32/2004-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. Durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded 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 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. 17. If the petitioner is aggrieved, the petitioner should only file a statutory appeal. The petitioner cannot expect the court to exercise ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 7.5% of the disputed tax at the stage of 1st appeal. Therefore, the petitioner cannot avoid pre-deposits 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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