TaxTMI 
TaxTMI 
2016 (2) TMI 811
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Service Tax Act {Finance Act} (for short "Said Act"). This Court had admitted the writ petition by granting Rule on 29.10.2002. However, had refused the interim relief. As the interim relief was not granted, the proceedings pursuant to the said show cause notice impugned in the writ petition continued. The O.I.O. i. e. the office of the Commissioner of Central Excise and Customs, Service Tax Cell found the assessee i. e. M/s Bajaj Auto Limited liable to pay service tax and also imposed penalty. The assessee assailed the said order before the Commissioner of Central Excise and Customs (Appeals). The said appeal was dismissed thereby confirming the judgment of the O. I. O. The assessee thereafter preferred appeal to the Customs, Excise and Service Tax Appellate Tribunal West Regional Bench at Mumbai (CESTAT). The CESTAT allowed the said appeal setting aside the demand and the penalty. The department has assailed the said judgment in First Appeal No. 589 of 2005. 3. We have heard Mr. Hidaytullah, the learned senior counsel in First Appeal No. 589 of 2005 and Mr. Hidayatullah the learned senior counsel along with Mrs. C. S. Deshmukh, the learned counsel in Writ Petition No. 3968 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or counsel, the said judgment stands confirmed by the Apex Court as the special leave petition filed against the said judgment is withdrawn by the department with liberty to file appeal, that is appeal U/Sec. 35L of the Central Excise Act to the Apex Court. The learned senior counsel also relies on the judgment of this Court in a case of Sterlite Optical Technologies Ltd. Vs. Commissioner of Central Excise Aurangabad reported in 2007 (213) E.L.T. 658 (Bom). 7. Mrs. Kalpalata Patil Bharaswadkar, the learned counsel for the department strenuously contends that the appeal will have to be decided on merits as it is admitted. According to the learned counsel, if the S.L.P. is dismissed in limine or is withdrawn, the principle of merger does not apply. For the said purpose the learned counsel relies on the judgment of the Apex Court in a case of Kunhayammed and others Vs. State of Kerala and another decided on 19.07.2000. The learned counsel submits that, the substantial question of law is required to be adjudicated. According to the learned counsel as per Article 11.7 of the agreement between KHI and BAL, all taxes concerning payment to KHI shall be made by BAL directly to Government o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder : THE CENTRAL EXCISE ACT, 1944 1. .......... 35. Appeals to [Commissioner (Appeals)]. 35A .............. 35G. Appeal to High Court( 1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this subsection shall be ( a) file within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial....
X X X X Extracts X X X X
X X X X Extracts X X X X
....b) any order passed [before the establishment of the National Tax Tribunal] by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. [(2) For the purpose of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment]" 10. This Court had framed the following substantial questions of law while admitting the appeal. (1) Whether royalty paid/received as consideration for transfer of technology know how can form part of taxable value ? (2) Whether M/s BAL are authorized person as per the provisions of Rule 6(1) of the Service Tax Rules 1994 to pay the taxes as applicable as per agreement clause 11.7 on behalf of M/s Kawasaki Heavy Industries Ltd. Japan ? 11. From the substantial question of law framed by this Court at the time of admission of appeal, it is manifest that the matter in issue was as to whether royalty paid/received as consideration for transfer of technology know how can form part of taxable value and....