TaxTMI 
TaxTMI 
2023 (10) TMI 64
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....Tribunal erred in concluding that demand cannot be confirmed on the applicant, if Revenue did not specified the service under which the activity of the applicant is covered especially in view of the fact that activity of the Respondent is liable for payment of service tax, since the activity of the respondent is not eligible for the exemption under Notification No. 25/2012-ST [Sr. No. 12(A)] in as much as the conditions framed under the said Notification by virtue of amendment vide Notification No. 9/2016-ST dated 01/03/2016 ? (c) Whether in the facts and circumstances of the case, the Ld. Tribunal erred in holding the amount received against WRP Way maintenance labour service by the Respondent is towards maintenance of Railway Tracks and exempted under the serial No. 12 of the Notification No. 25/2012-ST dated 20.06.2012 especially in view of the exemption provided against Sr. No. 12 (a) or Sr. No. 12A of Notification ibid is towards maintenance of a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession and Railway Tracks is neither a civil structure nor it can be classified as any ot....
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....missioner Vs. Reliance Industries Ltd; 2023 (383) ELT 396 (Guj.) (iv) Commissioner of Service Tax Vs. Saumya Construction Pvt. Ltd; 2015 (38) STR 17 (Guj.) (v) Commissioner Vs. Glare Cutlery Pvt. Ltd; 2015 (321) ELT A160 (Guj) (vi) Commr. of C. Ex. & S.T., Ahmedabad - II Vs. Pravinbhai Narshibhai Patel; 2017 (346) ELT 533 (Guj.) (vii) Commissioner of Service Tx Vs. Ernst & Young Pvt. Ltd & Ors; 2014 (2) TMI 1133 - Delhi High Court (viii) Commr. Of S.T., Bhavnagar Vs. Scott Wilson Kirkpatrick (I) Pvt. Ltd; 2011 (23) S.T.R. 321 (Kar.) (ix) The Comm. of C. Ex & S.T. Vs. Sikkim Manipal University of Health, Medical & Technological Science, Tadong, Gangtok, Sikkim; 2019 (12) TMI 560 (Sikkim High Court) (x) The Pr. Commissioner of CGST & C.E. Mumbai East Vs. DHL Lemuir Logistics Pvt. Ltd; 2019 (4) TMI 811 - Bombay High Court (xi) The Pr. Commissioner of Service Tax Pune Vs. Symbiosis Society; 2019 (6) TMI 1141 - Bombay High Court (xii) Navin Chemicals MFG. & Trading Co. Ltd. Vs. Collector of Customs; 1993 (68) ELT 3 (S.C.) 3.2 Mr. Shah would therefore submit that the Exemption Notification, if denied, con....
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....and also its classification in a particular taxable head. To get over the difficulties in defining service, a new concept of negative list services was introduced w.e.f from 1/7/2012. 4.2 That, Section 66D of Finance Act, 1994 specifies the Negative list of services i.e the Services on which Service Tax is not leviable, pursuant to which a Mega Exemption Notification 25/2012 mentions the list of service is exempt from service tax. It is submitted that Negative list basically means that all services, excluding those specified in negative list of service will be subject to service tax. Thus, one only had to see whether the service a person is providing is in the negative list or not. 4.3 That, if not, such person/entity is liable to pay service tax. Post the introduction of Negative list, the accounting code for purpose of classification of services was clarified by way of the circular of the No. 161/12/2012-ST, dated 06.07.2012, from F. No. 341/21/2012-TRU issued by the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, Government of India, on the above subject matter. For all taxable services, there was only one accounting code, as opposed to var....
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....determination of any question having a relation to the rate of duty or to the value of goods. Rate of duty is fixed, there is also no dispute as to the value. 4.10 The judgements cited by the respondents in the support of their case, pertain to the demand of service during the Positive list regime. Hence, it is submitted that same may be distinguished on the aforesaid reasoning. 4.11 Therefore, the present appeals are maintainable before this Hon'ble Court. 5. Facts in brief would indicate that M/s. Krishna Construction Co. is engaged in providing various services to Indian Railways. Notice was issued to them to show cause as to why service tax of the amounts not be payable. The defense of the assessee was that they provided services to the Indian Railways. That the services provided by them were exempted as per Serial No. 14 of the Notification No. 25/2012 -St dated 20.06.2012. 6. Holding that Serial No. 14 of the Notification No. 25/2021 dated 20.06.2012 was only available for "original work", a term defined under Explanation 1 to Rule 2A of the Service Tax (Determination of Value) Rules, 2006, the stand of the assessee was negated. 7. On appeal to CESTAT, the Trib....
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.... to maintain unmanned railway crossings. We find this activity is services of Maintenance of unmanned crossing of Indian Railways. Activities performed by Appellant under contract was to maintain unmanned Railway crossings primarily for safety. Therefore, activity by Appellant is not supply of manpower as such, but, it is maintenance of unmanned railway crossings, which is covered under the ambit of Maintenance of the unmanned Railway crossings. We also find that Maintenance Service is defined to mean any service provided by any person under contract or agreement in relation to maintenance of properties, whether immovable or not, excluding a motor vehicle. Appellant is neither supplying manpower nor appellant is 'engaged' in rendering services of supply of manpower as such. Therefore, Service Tax could not have been confirmed as maintenance service is exempted as per serial No. 12 of Notification NO. 25/2012-ST dated 20/06/2012. Hence, for activity of maintenance of unmanned Railway crossings, Service Tax @ 15 % equal to Rs. 4,02,217/- on the Taxable value of Rs. 26,94,777/- is not recoverable from Appellant. (ii) "WR P Way maintenance Labour" :- The adjudicating authority....
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....e introduced w.e.f. 01-07- 2003 by the Notification No. 7/2003-ST dated 20-06-2003 and "Cleaning Services" of commercial or industrial buildings and premises thereof were introduced w.e.f. 16-06-2005 by Notification No. 15/2005- ST dated 07-06-2005. Services of "maintenance or repair" is covered u/s 65(105)(zzg) of Finance Act 1994 w.e.f. 0107-2003 whereas the activity of "cleaning Service" is covered under Section 65(105) (zzzd) of the Finance Act 1994 w.e.f. 16-062005. However, "Cleaning Service" covers commercial or industrial buildings and premises thereof or factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof. But, Railway stations are also not commercial or industrial buildings, covered under the ambit of "Cleaning Service". Accordingly, activity of Appellant of picking rags etc is not cleaning service but it is covered under Maintenance of Railway Station. Therefore, the said activity will merit classification under maintenance of the Railway Station service, in terms of Section 65A of Finance Act 1994 and Budget Circular No. 334/4/06-TRU dt. 28-022006 which is eligible for exemption under the Sr. No. 12 of Notificat....
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.... civil structure. Therefore, services of Appellant were to Railways (Western), for Repairs and Maintenance is eligible for the above exemption." 8. Section 35G(1) of the Central Excise Act, 1944 reads as under: "Section 35G(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." 9. In the case of Shanti Processors Ltd (supra) a Division Bench of this Court held as under: "3. Mr. Paresh Dave and Mr. Dhaval Shah, learned advocates for the respondents at the outset submitted that the controversy involved in the present case relates to the determination of a question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment, under the circumstances, in view of the provisions of Section 35G read with Section 35L of the Central Excise Act, 1944, the appeal would lie ....
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....facture' within the meaning of Section 2(f) of the Act. The aforesaid stand of the assessee was not accepted by the Deputy Commissioner, Central Excise & Customs, Anand Division, Anand as well as Commissioner (Appeals). Being aggrieved, the assessee approached the Tribunal against the order of the Commissioner (Appeals). After hearing the arguments at length and considering the judgment cited by both the sides, the Tribunal held that relining of old and used cylinders does not amount to manufacture. Therefore, the orders passed by the authorities below were quashed and set aside and the appeal was allowed with consequential relief to the respondent. The Revenue being aggrieved by the aforesaid order passed by the Tribunal, has challenged the same in the present appeal. 5. The Andhra Pradesh High Court in the case of Commissioner of Central Excise, Hyderabad v. Shriram Refrigeration Industries (supra) has held that the question as to whether any process undertaken by a manufacturer amounts to manufacture or not, and if the goods produced during that process are excisable or not would fall within the meaning of the expression determination of rate of duty of excise or the va....
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.... 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 definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods." 7. This Court in the case Swiss Glass Coat Equipments Ltd. (supra), while deciding the issue in relation to maintainability of the appeal, has held as under: "3. Mr. Dhaval Shah, learned advocate, appearing on behalf of the respondent, at the outset, submitted that the appeal preferred by the appellant is not maintainable. Learned advocate placed reliance upon a decision of the Andhra Pradesh High Court in the case of Commissioner of Central Excise, Hyderabad v. Shriram Refrigeration Industries [2009 (240) E.L.T. 201 (A.P.), wherein it has been held that the question whether the process, if any, undertaken in....
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....e, Hyderabad v. Shriram Refrigeration Industries [supra] has held that the question as to whether any process undertaken by a manufacturer amounts to manufacture or not, and if the goods produced during that process are excisable or not would fall within the meaning of the expression `determination of rate of duty of excise or the value of the goods for the purposes of assessment of duty' used in section 35G[1] and section 35L[b] of the Act. We are in agreement with the view taken by the Andhra Pradesh High Court. In the circumstances, the present appeal which raises a question as to whether re-glass lining of old vessels amounts to manufacture or not, involves determination of a question relating to the rate of duty of excise or value of goods for the purposes of assessment, would lie before the Supreme Court and not before this Court. 6. The appeal is, therefore, dismissed as not maintainable." 8. Further, this Court in the case of Kich Industries (supra), while deciding the issue in relation to maintainability of appeal, has held as under: "2. Having noted the proposed substantial questions of law and the issue involved, we called upon the learned ....
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..... Hence, Registry is directed to return all the Tax Appeals to the appellant to present it before the competent Court having jurisdiction. Accordingly, all the Tax Appeals stand disposed of so far as this Court is concerned." 9. Further, Madras High Court in the case of The Glovis India Private Limited (supra), while deciding the issue in relation to 'manufacture', has held as under: "12. Be that as it may, since we are dealing only with the preliminary objection raised by the Assessee before us, we should naturally not express any opinion on the questions of law sought to be raised by the Revenue in the present appeals and that should be left to be raised at the appropriate forum, which, in our opinion, will be an appeal under section 35L of the Act before the Hon'ble Supreme Court of India. 13. Therefore, as indicated above, since the question of excitability under Central Excise Act and dutiability under the Customs Act are the basic questions at the root of the matter, before deciding the questions of rate of duty and valuation of goods, which as per expanded scope of 35L of the Act, should naturally now lie before the Hon'ble Supreme ....
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....c importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available." In our opinion, the issue in above referred two decisions, relied by appellant, was in relation to whether the goods are covered under the Notification or not and is there breach of conditions by the assessee, which have been imposed by the Notification for getting exemption? In our opinion, the said are not the facts in the present case. 12. In our opinion, the dispute in the present appeal, is in relation to whether the assessee was covered by the exemption notification, where the exemption notification was related directly and proximately to rate of duty applicable and, therefore as held by the Hon'ble Supreme Court in case of Navin Chemicals MFG & Trading Co. Ltd. (supra) and this court in case of Swiss Glass Coat Equipments Ltd. (supra) and Kich Industries (supra), appeal on the question of law before the High Court would not be maintainable and an appeal under section 35 L of the Central Excise Act, 1944, would be maintainable before the Hon'ble Supreme ....
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....Act, 1944 it is clear that no appeal would lie to the High Court from an order passed by CESTAT if such an order relates to, among other things, the determination of any question having a relation to the rate of duty or to the valuation of the taxable service. It has nothing to do with the issues sought to be raised in the appeal but it has everything to do with the nature of the order passed by the CESTAT. It may be very well for the appellant to say that it is only raising an issue pertaining to limitation but the provision does not speak about the issues raised in the appeal, on the other hand, it speaks about the nature of the order passed by the Tribunal. If the order passed by the Tribunal which is impugned before the High Court relates to the determination of value of the taxable service, then an appeal from such an order would not lie to the High Court. 4. However, we feel that although those decisions do support the contention of the learned counsel for the respondent, the approach that we have taken is a more direct. We reiterate, it is not the content of the appeal that is determinative of whether the appeal would be maintainable before the High Court or not but....
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.... purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (c) the amount of fine or penalty involved, does not exceed fifty thousand rupees." 11. It is noticeable that in sub-clause (3) to Section 129C, the words "determination of any question having relation to rate of duty or value for the purpose of assessment" have been used. Sub-section (4) to Section 129C refers to matters wherein the President or a member of the Appellate Tribunal authorized in this behalf by the President may, dispose of any case singly. Under sub-clause (c) the single member could decide a matter of fine or penalty not exceeding Rs. 50,000/-. The Supreme Court observed that the phrase "relation to" ordinarily is of wide import but in the context of the Section, must be read as meaning a direct and proximate relationship to rate of duty or value for the purpose of assessment. It was accordingly observed:- "13. The order of the Additional Collector under appeal before CEGAT in the present case did not have any direct or proximate relation, for the purposes of assessment, either to the rate of duty applicable to the said go....
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....l exemption from duty; or e) whether the value of any goods for the purposes of assessment of duty of excise shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act" 14. Drawing analogy, Revenue has submitted that clause (c) to explanation where the goods were excisable or where the rate of duty on any of the goods was NIL is not applicable as Section 35E is not one of the Sections which have been made applicable to CE Act or to the F.Act. Thus, the legislature did not want to broaden and expand scope of appeals before the Supreme Court by referring to Section 35E, which was identically worded as Section 129D of the Customs Act. In any case, the explanation to Section 35E of the EC Act has been deleted. 15. We have considered the said contention but do not think it supports the view or contention of the appellant Revenue. Section 35E of the EC Act relates to power of the Board or the Collector of Central Excise to pass such an order. Sub-section (1) stipulates that the Board can direct Collector to apply to appellate tribunal for determination of points arising out of the....
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....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 definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods." 18. On reading of the said paragraph, it islucid 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 sub-section (5) to Section 129D of the Customs Act, would include question relating to classification of goods under the tariff, whether or not they are covered by exemption notification; whether value for the purpose of assessment should be enhanced or reduced etc. It was furth....
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....e contention of the appellant that from the year 2012, a negative list of services was prescribed and therefore there is no classification of service left open, the case of Saumya Construction Pvt. Ltd. (supra) reads as under: "10. In the backdrop of the facts and contentions noted hereinabove, it would be necessary to first deal with the preliminary objection raised by the learned counsel for the respondent regarding non-maintainability of the appeal. For this purpose it would be necessary to decide as to whether the impugned order passed by the Tribunal is 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 the purposes of assessment, so as to bar the jurisdiction of the High Court to adjudicate upon the issue. 11. Before adverting to the rival contentions, it would be germane to refer to the decisions on which reliance has been placed by the learned counsel for the assessee. 12. In Commissioner of Central Excise &Customs v. Swiss Glass Coat Equipments Ltd. (supra), this High Court has agreed with the view taken by the Andhra Pradesh High Court in the ca....
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....ion of any question having a relation to the rate of duty of excise. This means that anything attendant to the determination of any question having a relation to the rate of duty of excise would also fall within the trappings of the exclusion, thus, taking the jurisdiction away from the High Court; to be agitated before the Supreme Court in terms of Section 35L. 5. Thinking a little deeper, if we were to understand the classification on jurisdiction to be that what would fall before the Apex Court are only appeals either as to the rate of duty or as to the value of goods for the purpose of assessment, we may immediately note that rate of tax is a prescription of the Parliament and it is not part of judicial function to tinker with the rate of tax. This has also been noticed in Karnataka State Beverages Corporation Ltd. (supra). Secondly and more importantly, if we were to find jurisdiction with the High Courts to decide as to whether there could be levy of duty of excise in relation to a particular situation, incidence or goods, that would be conceding to the position that what would be left to the Supreme Court is only to determine the rate of tax and the value of goods f....
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....duty of excise or the value of the goods for the purposes of assessment of duty' used in Section 35G(1) and Section 35L(b) of the Act. Therefore, the phrase 'rate of tax' does not mean fraction of tax payable because what is the tax payable i.e., fraction payable is decided by the Legislature. Once that is prescribed by the Legislature in the Act, the Court cannot sit in judgment and alter or modify the said rate of tax. The Court has no jurisdiction to go into the correctness or otherwise of the rate of tax payable in the sense that the rate prescribed by the Legislature. In the case of Finance Act, 1994, the rate of Service Tax payable is uniform to all the services. If the rate of tax is to be understood in the sense it is suggested, Sections 35G and 35L, has no application at all to the Finance Act. Such an interpretation would render Section 83 in so far as applying the provisions of Sections 35G and 35L redundant. Then there is no provision in the Finance Act, 1994 for determination of the aforesaid disputes. That was not the intendment of the Parliament. Therefore, the argument that rate of tax means only the rate at which tax is payable or a fraction is unsustainable. Act:-....
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....fits to which they are entitled to refunds, duty drawbacks, rebates, etc., which relate to a particular manufacture falls within the jurisdiction of the High Courts. In other words, all disputes emanating from the orders determining the rate of Service Tax and value of service, which has reached finality are to be determined by the High Court and not disputes arising prior to the stage of determining the rate of Service Tax and value of service." 16. The above decision of the Karnataka High Court has been followed by it in a subsequent decision in the case of Commissioner of Central Excise, Customs & Service Tax v. Bellary Computers - 2014 (33) S.T.R. 504 (Kar.), and by the Allahabad High Court in the case of Royal Bank of Scotland N.V. v. Commissioner of Customs & Central Excise, Noida - 2014 (35) S.T.R. 68 (All.). 17. Reference may now be made to the relevant statutory provisions. The Finance Act, 1994 does not provide for any mechanism for appeal against an order made by the Appellate Tribunal under Section 86 thereof. However, Section 83 thereof provides for the application of certain provisions of the Central Excise Act, 1944 and reads thus : "83. Ap....
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....e Tribunal, provided such order is not 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 the purposes of assessment. While applying the said provision to an order passed in relation to Service Tax under the Finance Act, 1994, what would be required to be examined is as to whether the order passed by the Tribunal relates to the determination of the rate of Service Tax or the value of any service for the purpose of assessment. 20. Therefore, the moot question that arises for consideration is as to whether the order passed by the Tribunal is an order relating to determination of the rate of Service Tax or the value of any service for the purpose of assessment. As can be seen on a combined reading of Section 35G and Section 35L of the Act, if the order of the Tribunal relates to determination of the rate of duty, the appeal would lie before the Supreme Court and not before the High Court. The expression "rate of duty" has not been defined under the Act. However, for the purpose of considering the meaning assigned to the said expression, the Supreme Court in the case of Navin ....
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....f duty of excise for the time being in force, whether under the Central Excise Tariff Act, 1985 (5 of 1986), or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty of excise in cases where the assessment is made on or after the 28th day of February, 1986; or (c) whether any goods are excisable goods or whether the rate of duty of excise on any goods is nil; or (d) whether any goods fall under a particular heading or sub-heading of the First Schedule and the Second Schedule of the Central Excise Tariff Act, 1985 (5 of 1986), or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), or that any goods are or not covered by a particular notification or order issued by the Central Government or the Board, as the case may be, granting total or partial exemption from duty; or (e) whether the value of any goods for the purposes of assessment of duty o....
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....88) of the Finance Act, 1994 by not finding the respondent herein liable for discharge of Service Tax under the category of Real Estate Agent services for the amount received by them as development charges? The Tribunal, in the impugned order has held that the service rendered by the assessee does not get covered under the category of Real Estate Agent services. Evidently, therefore, the dispute involved in the present case relates to whether the activity carried out by the assessee is a service within the meaning of such expression as defined under the Finance Act, 1994; or whether such service falls under the category of taxable service under sub-section (105) of Section 65 of the Finance Act, 1994. Therefore, the controversy involved in the present case is a classification dispute which has a direct and proximate relation to the rate of Service Tax or the value of any service. Consequently, this court has no jurisdiction to adjudicate upon the said controversy." 14. Even the Karnataka High Court in the case of Scott Wilson (supra) held as under: "What is assessment? 14. The word "assessment" is used as meaning sometimes the computation of rate of duty, somet....
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.... 34 601] explaining the meaning the word assessment arising under the Income Tax Act has held as under : - "Total income means the total amount of income, profits and gains computed in the manner laid down in the Act, and there are no good reasons why the word "assessment" occurring in the saving provisions should be restricted in the manner suggested so as to exclude proceedings for assessment of escaped income or under-assessed income .............. In its normal sense, "to assess" means "to fix the amount of tax or to determine such amount". The process of reassessment is to the same purpose and is included in the connotation of the term "assessment". The reasons which led us to give a comprehensive meaning to the word "assessment" in section 13(1) of the Finance Act, 1950, operate equally with regard to the saving provisions under present consideration." 18. The Supreme Court in the case of C.A. Abraham v. Income-Tax Officer, Kottayam, and Another explaining the meaning of the word assessment in the context of the Income Tax Act held as under :- "A review of the provisions of Chapter IV of the Act sufficiently discloses that the word "assessment" has ....
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....mitted under a valid law for disposal. The expression "order" must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasi-judicial: purely administrative or executive direction is not contemplated to be made the subject-matter of appeal to this Court. The essence of the authority of this Court being judicial, this Court does not exercise administrative or executive powers i.e. character of the power conferred upon this Court original or appellate, by its constitution being judicial, the determination or order sought to be appealed from must have the character of a judicial adjudication. Meaning of "Rate of Duty" 20. It is in this background we have to interpret the words "rate of duty". The question is, what is the meaning attached to the 'rate of duty' as mentioned under these provisions. In order to understand the word 'rate of duty' and the dispute relating to that, it is useful to refer to the meaning assigned to the said word by the Parliament by way of an explanation to sub-section (5) of Section 35G by amendment Act 29/1988. The said amendment was intended to be brought into force fr....
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....anced or reduced by addition or reduction of the amounts in respect of such matters as are specifically provided under the Act. Though the determination of the word duty may not include all those questions, the explanation makes it clear the aforesaid expanded meaning is to be attributed to the aforesaid phrase for the purpose of this section only. It is because the said explanation is added to Section 35E which deals with the power of revision of Board or Commissioner of Central Excise in certain case. In other words what is sought to be conveyed by the explanation is that the authorities while exercising the revisional jurisdiction shall not go into those questions. That in no way comes in the way of understanding the meaning of the phrase 'rate of duty'. On the contrary it clearly sets out the intention of the legislature in so far as the meaning to be attributed to the said phrase. Therefore, the said meaning could be read into the phrase wherever it is used in the other parts of the statute, as held by the Apex Court in Navin Chemicals case. It also would be in conformity with the interpretation placed on the said phrase by the Apex Court as well as the High Court, as....
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.....Ex., Nagpur v. Universal Ferro and Allied Chemicals Ltd. reported in 2009 (234) E.L.T. 220 (Bom.) = 2009 (13) S.T.R. 498 (Bom.) at para 6 held as under : "We have considered the rival contentions made on behalf of parties and also perused the provisions of Sections 35G and 35L(b) of the Act of 1944, an appeal against the order passed by the Appellate Tribunal would lie to the High Court except 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. Section 35L(b) provides that an appeal against an order passed 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 would lie to the Supreme Court. It is, thus, clear from the aforesaid proviso that an appeal against an order passed 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 would lie to the Supreme Court and not the High Cou....
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....occasion to interpret the said Section 130 and 130E in number of decisions. However, though not in an identical matter, but almost near to the said matter, interpreting the powers of the Appellate Tribunal, with reference to the jurisdiction of a special Bench and an ordinary Bench, the Supreme Court had an occasion to consider the very same words used in both the sections in the case of Navin Chemicals Mfg. &. Trading Co. Ltd. v. Collector of Customs reported in 1993 (68) E.L.T. 3 (S.C.) under the Customs Act. The Apex Court held as under : "The controversy, therefore, relates to the meaning to be given to the expression 'determination of any question having a relation to the rate of duty of customs or to the value of the goods for purposes of assessment'. It seems to us that the key lies in the words for the purpose of assessment' therein. Where the appeal involves the determination of any question that has a relation to the rate of customs duty for the purposes of assessment that appeal must be head by a Special Bench. Similarly, where the appeal involves the determination of any question that has a relation to the value of goods for the purposes of assessment that appe....
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....essment 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 definition of the said expression indicates that it has to be read to limit his application to cases where for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods." At para 12 they concluded as under : "This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT: does the question requires determination have a direct and proximate relation, for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods." 28. In the case of Commissioner of Customs, Chennai v. Jayathi Krishna and Company reported in 2000 (119) E.L.T. 4 (S.C.), the question involved was whether the assessee is liable to pay interest under Section 61(2) of the Customs Act. When the imposition of interest under the a....
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....tion of the Exim Policy and consequently liable to pay customs duty. The Tribunal held that there is violation of Exim Policy. In an appeal preferred against the order of the Tribunal under Section 130E of the Act, the Supreme Court reversed the finding of the Tribunal by holding that assessee is guilty of violating Para 156(A) of the Exim Policy 1992-97 and therefore, they are liable to be assessed under Tariff Heading 64.04 and accordingly, they were liable to pay duty of customs at 50% + CVD at 15% ad valorem and the assessee was not entitled to concessional rate of duty under Notification No. 45/94-Cus., dated 1-3-1994 and the department was right in invoking Rule 8 of the Customs Valuation Rules. 33. In Commissioner of Customs, Tuticorn v. Edhayam Frozen Foods, reported in 2008 (230) E.L.T. 225 (Mad.), objection was taken regarding the maintainability of the appeal before the High Court under Section 130 of the Customs Act. It was held that the determination of question involved in this case does not have a relation to the rate of duty or the value of the goods for the purpose of assessment and therefore, the appeal was maintainable. The question involved therein was ....
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....s, and to a valuation of property. 'Rate' is used in an Act declaring that the Legislative Assembly shall provide by law for a uniform and equal rate of taxation and assessment, applies to the percentage of fixation, as used in connection with 'taxation' and to the valuation of the property, as used in connection with 'assessment'. It is a valuation of every man's estate or setting down how every one shall pay, or be charged with, to any tax. By the use of the expression 'rate' a relation between the taxable income and the tax charged is intended, but the relation need not be of the nature of proportion of fraction. The Explanation to sub-section (5) of Section 35E of the Central Excise Act, the expression includes the determination of a question relating to the rate of duty, to the value of Service for the purposes of assessment; to the classification of Service under the Tariff and whether or not they are covered by an exemption notification: and whether the value of Service for the purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Questions relating to the rate of duty and to the value of Service for purposes of....