TaxTMI 
TaxTMI 
2008 (2) TMI 940
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....ction 34 of the Arbitration and Conciliation Act-1996 (for short, "The Act") whereby, the award dated 25th May, 2004 passed by the sole Arbitrator in Arbitration between the parties has been quashed and set aside. 2. The Appellants' case is as under: 3. The Respondent is a transport Contractor/ travelling agent/ service provider, governed by the provisions of Motor Transport Workers Act, 1961. 4. On 17/06/1993, the Respondent entered into a written contract with the Appellant as "Handling Contractor" for handling its iron and steel materials at their Kalamboli Stockyards, Navi Mumbai. 5. During the pendency of the said contract, Section 65 of the Finance Act, 1994 was substituted by Section 88 of the Finance Act, 1997 whereby 5%....
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....agent and by whom remuneration or commission (by whatever name called) is paid for such services to the said agent; or iii) in relation to services provided by a goods transport operator; every person who pays or is liable to pay the freight either himself or through his agent for the transportation of goods by road in a goods carriage; iv) after Clause (18) the following clause had been substituted namely: (18A) "goods carriage" has the meaning assigned to it in Clause (14) of Section 2 of the Motor Vehicles Act 1988 (59 of 1988). (18B) "goods transport operator" means any commercial concern engaged in the transportation of goods by does not include a courier agency; (iii) in Clause (48), after ....
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.... tax amount from the amount payable to the Petitioners though it was payable by the Respondents. Admittedly, the Petitioners/ Appellants recipients of the service of the Respondents as per the agreement in question. The Appellants, pursuant to the Provisions of Service Tax registered and recognized as an "Assessee" and also filed returns as contemplated, accordingly. The Appellants being assessee, therefore, liable to pay the Service tax being the recipients of the services from the Respondents. Admittedly, there was no specific agreement with regard to the payment of service tax in question by the Respondents to the extent that the Appellants would entitle to deduct the amount so paid or payable under the Service Tax though the Respondents....
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....rom the Clauses of agreement and specially Clause Nos. 6 and 9.3 as referred above under the commercial contract like this, in absence of specific clause there is no question of deducting such amount as the Respondents contractor is even otherwise and in no way liable to pay such service tax. The Appellants by claiming such deduction, after paying the said tax to the department, recovering the said amount by this method from the Respondents which is impermissible. The department, on application filed by the Applicant, already rejected the specific claim of refund of this amount. 18. With regard to the second part of the Clause 9.3, we have noted that there is no force in the contention that this amount is deductible as the amount apparen....