TaxTMI 
TaxTMI 
2023 (5) TMI 440
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....ransportation of Goods through Pipelines/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 co....
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....ions contained in the Finance Act, the word "excise duty" 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 thin....
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....udges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ 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 ....
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.... Ltd. v. C.S.T. Mumbai, CEA No. 66 of 2014, decided on 23rd March, 2015 and Bajaj Auto Ltd. v. Union of India, (2016) 4 STR 384, decided on 24th June, 2015. According to the referring Division Bench, the decision in Global 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 refere....
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....on, would only arise when the authorities have to decide the appropriate classification between two competing entries under the Finance Act, 1994. It held no question relating to determination of the rate of duty can arise when the order under challenge 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....
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.... that the issue in the above case was not with regard to excisability or taxability or importability in the context of Customs Act, 1962 but with regard to eligibility of an exemption notification for non-satisfaction of post import conditions therein. In the above case, there was no issue relating 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 relat....
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.... to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it for the purpose of this sub-section'. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; 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 relate....
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....be taxed was required to be considered by the Hon'ble Supreme Court and not by this Court. It is noteworthy that the Revenue has not been able to show a single decision of any Court (including this Court) except the decision in Global Vectra Helicorp (supra) to support the contention that the issue of excisability/taxability 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 ....
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....resent statutory context.' (emphasis supplied) It further records the fact that the Hon'ble Supreme Court has been entertaining and deciding the appeals under the Act relating to excisability of the goods and in that regard made specific reference to the following decisions of the Supreme Court:- (a) Maltex (I) Pvt. Ltd. v. 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 a....