2018 (4) TMI 1639 - HC - Central Excise

High Court emphasizes nature of Tribunal order in appeal under Section 35G of Central Excise Act

Commissioner Of Central Excise Service Tax, Versus M/s. Fun Foods Pvt. Ltd., Alwar (Raj.)

The High Court held that the appeal was not entertained under Section 35G of the Central Excise Act, directing the appellant to approach the Supreme Court ... Maintainability of appeal before High Court - question having a relation to the rate of duty or to the valuation of the taxable service - Held that:- In the case of COMMISSIONER OF SERVICE TAX VERSUS ERNST & YOUNG PVT. LTD. AND OTHERS [2014 (2) TMI 1133 - DELHI HIGH COURT], where it was held that if the order relates to several issues or questions but when one of the questions raised relates to “rate of tax” or valuation in the order in the original, the appeal is maintainable before the Supreme Court and no appeal lies before the High Court under Section 35G of the CE Act. Thus, the appeal is not entertained. It will be open for the appellant to approach the Hon’ble Supreme Court - appeal dismissed being not maintainable. Issues Involved:Interpretation of Section 35G of the Central Excise Act, 1944 regarding the maintainability of appeals before the High Court in cases related to rate of tax or valuation for the purpose of assessment.Analysis:The judgment of the High Court was based on the interpretation of Section 35G of the Central Excise Act, 1944, in light of the Delhi High Court's decision in the case of Commissioner of Service Tax v. Ernest & Young Private Limited. The Delhi High Court's judgment emphasized the importance of the language used in Section 35G, specifically focusing on the terms 'determination' of any question in relation to the rate of duty or value for the purpose of assessment. It was highlighted that the words 'any' and 'in relation to' provide a broad expanse to the appellate jurisdiction of the Supreme Court concerning questions related to the rate of tax or valuation for assessment. The judgment clarified that even if an order involves multiple issues or questions, if one of the questions pertains to the rate of tax or valuation, the appeal is maintainable before the Supreme Court, and no appeal lies before the High Court under Section 35G of the Central Excise Act.Furthermore, the judgment referred to the expression 'other things' in Section 35G of the Central Excise Act and cited the case of Bharti Airtel Limited to explain that the appeal's maintainability before the High Court is determined by the nature of the order passed by the Tribunal, rather than the specific issues raised in the appeal. It was emphasized that if the order passed by the Tribunal, which is being challenged before the High Court, relates to the determination of the value of the taxable service, then an appeal to the High Court would not be permissible. The judgment underscored that the content of the appeal is not decisive in determining its maintainability before the High Court; instead, it is the nature of the impugned order that is crucial.In conclusion, the High Court held that the appeal was not entertained, directing the appellant to approach the Honorable Supreme Court if desired. The period from the date of filing the appeal until the judgment was considered in the overall assessment of the matter. The appeal was disposed of in accordance with the interpretation of Section 35G and the precedents cited in the judgment.