TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 440
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....s/Condult Services" were accepted. The CESTAT held that the respondent assessee was a seller and not a service provider and hence, in absence of service provider/service recipient relationship, there could not be any question of levy of service tax and hence, the demand could not be sustained. Accordingly, the demand of service tax interest and penalty raised by the Adjudicating Authority and affirmed by the Appellate Authority was quashed and set aside. 2. Affidavits-in-opposition have been filed on behalf of the respondent in all these appeals, wherein a pertinent preliminary objection is raised regarding maintainability of these appeals by referring to the provisions contained in Sections 35G and 35L of the Central Excise Act, 1944 (hereinafter referred to as the "1944 Act"). 3. Arguments on the aspect of maintainability of these appeals have been heard. The circumstances leading to filing of the appeals were thoroughly analyzed. The applicable statutory provisions, the impugned orders and precedents cited at bar have been perused. 4. Mr. D. Sen and Mr. D. Das, learned counsel representing the respondent vehemently and fervently contended that as the only issue involved in th....
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....is to be read as service tax and the department has a right to file a statutory appeal against the orders of CESTAT. He thus, implored the Court to admit the appeals on the following substantial question of law:- "(a) Whether the Hon'ble CESTAT, Kolkata is correct in holding that the assessee is not liable to pay service tax on the 'Transportation of Goods by Pipeline Service' for the consideration received by the assessee for transportation of crude oil from their premises to the buyers' premises?" 6. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the material available on record. 7. The question regarding maintainability of these appeals falls within a very narrow compass. The relevant provisions of law, i.e. Sections 35G and 35L of the 1944 Act, which have a bearing on the issue are reproduced hereinbelow for the sake of ready reference: "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 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 d....
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....and the case shall, then, be heard upon that point only by one or more of the other Judges of High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the cases including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of code of Civil Procedure 1908 (5 of 1908), relating to the appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. 35L. Appeal to Supreme Court.- [(1)] An appeal shall lie to the Supreme Court from- (a) any judgment of the High Court delivered- (i) in an appeal made under section 35G; or (ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under section 35H, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or] (b) any order passed [before the establishment of the National Tax Tribunal] by the Appellate Tribunal relating, among other things, to the determination o....
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....lobal Vectra Helicorp Ltd. (supra), of this Court held that in view of sections 35-G(1) and 35-L(2) of the Act, the question of taxability or excisability of goods for the purpose of assessment would not be an issue of rate of duty. Therefore, an appeal from the order of the Tribunal on the issue of taxability/excisability would be maintainable before this Court and not before the Hon'ble Supreme Court. On the other hand, in Bajaj Auto Ltd. (supra) this Court held that in view of section 35-G(1) and 35- L(1)(b) of the Act, an appeal on the issue of taxability/excisability would lie to the Hon'ble Supreme Court and cannot be entertained by this Court. Further, this Court in Bajaj Auto Ltd. (supra) also held that section 35- L(2) of the Act which was inserted into the Act w.e.f. 6th August, 2014 was only clarificatory in nature. This as the issue of excisability/taxability was a rate of duty issue at all times. 4. Briefly the facts leading to this reference are as under:- (a) On 20th November, 2013, the Tribunal passed the impugned order allowing the respondent's appeal. This by holding that chemical preparations for photographic use are not marketable, therefore, n....
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....llenge decides whether the services rendered can be said to be covered by section 65(105)(zzzzj) of the Finance Act, 1994. (e) The Division Bench which referred the above question to this Court, noted the fact that although Global Vectra Helicorp Ltd. (supra) did in terms refer to section 35-L(2) of the Act, it did not express any view on it. Moreover, it also noted that the binding decision of the Apex Court in Navin Chemicals Mfg. and Trading Co. Ltd. v. Collector of Customs, (1993) 68 ELT 3 and the decision of this Court were also not considered. Moreover, before the referring Division Bench, the parties did not dispute that post insertion of sub-section (2) to section 35-L of the Act, w.e.f. 6th August, 2014, orders of the Tribunal relating to taxability of services and excisability of goods would be appealable to the Hon'ble Supreme Court,. (f) It is in view of the aforesaid conflict between the two views of this Court, as indicated in Global Vectra Helicorp Ltd. (supra) and Bajaj Auto Ltd. (supra), that the aforesaid questions have been referred by the Division Bench to the Full Bench. 5. We have heard Mr. Bangur, for the appellant Revenue and Mr. Sridharan, lear....
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....ting to the rate of duty in respect of the goods imported but the issue was application of an exemption after importation and clearance for home consumption, subject to satisfying the conditions of the notification, viz. utilization of imported material for specific purpose such as manufacture of final product. The Supreme Court, while holding that the above issue is not a rate of duty issue, observed that the dispute is inter se between the parties and the decision is not applicable to a separate class or category of assessees as a whole. The above decision will not apply to a decision of the Tribunal dealing with taxability/excisability which necessarily would require determining the rate of duty for the purpose of assessment. It is only on deciding the taxability of services or excisability of goods that a rate of duty can be decided. The words "determination of any question having a relation to rate of duty of excise for the purpose of assessment" as found in the context of section 35-G and 35-L of the Act was a subject of consideration by this Court in Sterlite Optical Technologies Ltd. v. Commissioner of Central Excise, 213 ELT 658. This Court held that the word "assessment" ....
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....ssment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value-of goods for the purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory de....
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....ility can be entertained by the High Court. We shall deal with the above decision of this Court in Global Vectra Helicorp (supra) separately a little later. During the course of hearing, our attention was also drawn to the decision of the Delhi High Court in Commissioner of Sales Tax v. Ernst and Young Pvt. Ltd., 34 STR 3. In the above case, the Court was concerned with the issue whether the services rendered by the assessee therein were chargeable to tax under the Finance Act, 1994. The assessee therein raised a preliminary objection about the jurisdiction of the High Court to entertain the Revenue's appeal on the above dispute. The Delhi High Court, while following the decision of the Hon'ble Supreme Court in Navin Chemicals (supra), in particular para 11 thereof, held that the orders of the Tribunal deciding the issue of taxability would be appealable to the Supreme Court. It noted in paragraphs 18 and 19 as follows:- '18. On reading of the said paragraph, it is lucid and clear that Supreme Court had stated that questions relating to rate of duty and valuation for the purpose of assessment as defined in the explanation to subsection (5) to section 129-D of the Customs....
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..... Commissioner of C. Ex., (2004) 165 ELT 129, (b) Commissioner of Central Excise v. Mahavir Aluminum, 212 ELT 3, (c) Nestle India Ltd. v. Commissioner of Central Excise, 235 ELT 577. We are in complete agreement with the reasons of the above Delhi High Court decision in Ernst and Young Pvt. Ltd. (supra) to conclude that issues of taxability and excisability from the orders of the Tribunal are appealable to the Hon'ble Supreme Court. (e) It was also contended by the appellant Revenue that insertion of subsection (2) to section 35-L of the Act that taxability/excisability would be a rate of duty issue w.e.f. 6th August, 2014 would itself imply that prior to 6th August, 2014, the issue of taxability/excisability was appealable to the High Court. This submission on behalf of the Revenue cannot be accepted in view of the various decisions referred to hereinabove where the Courts have held that issue of excisability of goods and taxability of services are appelable to the Hon'ble Supreme Court even prior to the insertion of sub-section (2) to section 35-L of the Act. The introduction/insertion of subsection (2) to section 35-L of the Act was done as a matter of abunda....