TaxTMI 
TaxTMI 
2025 (7) TMI 283
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....earing no. DLISVTAX002COM0441617 dated 30th December 2016 passed by the Office of the Commissioner of Service Tax, Delhi-II (hereinafter, 'Order-in- Original'). 4. According to Mr. Tripathi, ld. Counsel for the Appellant, the CESTAT had allowed the appeal on the ground that the Show Cause Notice (hereinafter, 'SCN') dated 19th October 2011 was barred by limitation. 5. In the present appeal, notice was issued vide order dated 24th April, 2025. Thereafter, an application i.e., the present application being CM APPL.30788/2025, had been moved by the Respondent. The prayer in the present application reads as under: "A) allow the present application by recalling the order dated 24.04.2025 passed by this Hon'ble court in SERTA 5 of 2025 and dismiss the present Appeal in SERTA 5 of 2025 filed by the Appellant/Revenue as not maintainable before this Hon'ble Court. B) pass such further order(s) as this Hon'ble Court may deem just and proper in the facts and circumstances of the case." 6. Mr. J. K. Mittal, ld. Counsel appearing on behalf of the Respondent submits that the present appeal is not maintainable before this Court as the issue of taxability would arise in this matter ....
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.... titled 'Commissioner of CGST and Central Excise Delhi South v. M/s Spicejet Ltd.', this Court considered all the judgments cited by Mr. Mittal and has recently taken a view that even if the impugned order has dealt only with the issue of limitation, the appeal would lie under Section 35L of the Central Excise Act, 1944 to the Supreme Court. The relevant portion of the said order is extracted as under: "10. However, during the course of hearing, it is clear to this Court that upon the issue of limitation being decided, the question of taxability would have to be adjudicated. It is clear from a reading of Section 35G and 35L of the Central Excise Act, 1944 that whenever issues of taxability arise, the appeal would lie to the Supreme Court. The said provisions are extracted below: "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 ....
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....rd upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. xxx xxx xxx 35L. Appeal to the 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 1stday 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 of any question h....
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....vision 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 rather the nature of the order which is impugned in the appeal which determines the issue." 12. Further, a Division Bench of this Court in the judgement of Commissioner of Service Tax v. Delhi Gymkhana Club Ltd. [2009 (16) STR 129 (Del)], clarified that any issue with regard to the determination of any question in relation to valuation for purpose of assessment, when decided by CESTAT shall be appealed to the Supreme Court. Relevant paragraphs of the said judgement are extracted hereinbelow: "9. It is clear from the above....
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....fication 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 129D, 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 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 definition of the said expres....
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....ble before the High Court or not but rather the nature of the order 5. In the present case, we find that the impugned order deals not only with the question of limitation but also with the question of valuation. It so happens that in the present case, the issue with regard to the valuation of the taxable services was decided in favour of the revenue but, because the extended period of limitation was not invokable, as per the Tribunal, the respondent-assessee did not prefer any appeal against the said order. But, the order which is impugned before us deals with both the issues, that is, the issue of valuation of taxable services as also the issue of limitation. The mere fact that the appellant is only aggrieved by the decision on the point of limitation would not make an appeal from the impugned order maintainable before this Court because it is not the issues raised in the appeal which are material but the nature of the order which is appealed against is relevant for the purpose of determining whether an appeal would lie in this Court or not. 6. In view of the fact that the impugned order deals with the question of valuation apart from the question of limitation, this appeal wo....