TaxTMI 
TaxTMI 
2015 (3) TMI 1456
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....d to as 'ONGC'). The appellant provided offshore drilling services to ONGC in terms of the contract entered with the ONGC at various locations. Vide notification dated 7/7/2009 services provided on installations, structure and vessels were made taxable. It is not in dispute that by a subsequent notification dated 27/2/2010 the provisions of notification dated 7/7/2009 were also extended to the area specified in column 2 of table stated in the said notification in the continental shelf of India and exclusive economic zone of India for the purpose mentioned in the column No. 3 of the table. 4 It is not in dispute that the service tax for the services provided by the appellant for drilling on the installations of ONGC has already been paid. It is also not in dispute that in the continental shelf and exclusive economic zone of India which is beyond 12 nautical miles and within 200 nautical miles in the open sea, service tax has been paid in respect of services provided on the installation of the ONGC. The only dispute that falls for consideration in the present Appeal is as to whether within the continental shelf of India and exclusive economic zone of India, services p....
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....g Co. Ltd. (cited supra) and following Judgments of the Division Benches of this Court. (i) Union of India v/s. Auto Ignation Ltd., reported in 2002 (142) E.L.T. 292(Bom.) (ii) Commissioner of Custom & Central Excise, Goa v/s. Primella Sanitary Products (P) Ltd., reported in 2002(145) E.L.T. 515(Bom.) (iii) Sterlite Optical Technologies Ltd. V/s. Commissioner of Central Excise, Aurangabad, reported in 2007(213) E.L.T. 658. (iv) Commissioner of Central Excise, Nagpur v/s. Universal Ferro & Allied Chemicals Ltd., reported in 2009 (234) E.L.T. 220 (Bom.). (v) The Commissioner of Central Excise & Service Tax, Pune v/s. M/s. Credit Suisse Services (I) Pvt. Ltd., bearing Central Excise Appeal No. 5 of 2014 & other connected matters decided on 23/2/2015. 11 For appreciating the rival controversy, it will be necessary to refer to Subsection 1 of Section 35 G and Section 35 L of the said Act, which read thus : "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 thi....
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....axability or excisability of the goods for the purposes of assessment arises, then also appeal would not lie before this Court. 14 However, the issue is no more integra. In the catena of Judgments beginning from the Judgment of the Apex Court in the case of Navin Chemicals Mfg. & Trading Co. Ltd. (cited supra), the position has been clarified. We may gainfully seek guidance from the observations of the Apex Court in the case of Navin Chemicals Mfg. & Trading Co. Ltd. (cited supra). It will be appropriate to refer to paragraph­6, 7 and 11 of the said Judgment, which reads thus : "6. It is, upon a plain reading of the section, clear that appeals against orders which involve 'determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment' are specially treated and are required to be heard by a Special Bench. This is what Sub­section 3 of Section 129­C provides. Appeals in other matters are to be heard by a Bench consisting of one Judicial Member and one Technical Member, subject to the provisions of Sub­section (4). Sub­section (4) carves out an exception to the general provisio....
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.... 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 Subsection 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 expression indicates that it ....
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.... Act. However while dismissing the Petition, the Division Bench observed thus in paragraph­23 : "it is not possible for us to accept the contention of the Revenue that the question of rate of duty is not an issue involved in the present case. The Supreme Court clearly laid down that the dispute as to the classification of goods and as to whether or not they are covered by the exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Applying the said dicta, the question whether or not the respondent­assessee is well within exemption notification is a question directly involved in this dispute relates directly and proximately to the rate of duty of excise for the purposes of assessment. In other words, the issue raised in these petitions directly relates to dispute whether or not they are covered by the exemption notification, which can conveniently be gone into in an appeal filed under Section 35L of the Act." The Division Bench relying on the judgment of the Apex Court in the case of Navin Chemicals Mfg and Trading Co. (cited supra) rejected the contention of the Revenue that the question of rate ....
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....eld that reference to this Court under Section 35 H was not tenable. 20 In the case of Sterlite Optical Technologies Ltd.(cited supra), the question that arose for consideration, was as to what should be the rate of duty for the goods cleared to the Domestic Tariff Area. The Division Bench observed thus in paragraph­23 : "23. Considered on the above backdrops, the question of determination of status of the subject Unit will be one of the steps in the process of assessment. This exercise would be an exercise; which can be said to be part of the assessment. In this view of the matter, in our view, the dispute involved in the appeal and the substance thereof is : what should be rate of duty on the goods cleared to the Domestic Tarrif Area (D.T.A.). We have, thus, no hesitation to hold that the direct and proximate issues involved in the appeal for the purposes of assessment relate to the rate of duty applicable to the goods and the value thereof and the issue requiring determination of the status of the subject Unit would be one of the incidental issues. The contentions raised by the appellants, catalogued in Para (19) supra, also revolve around the rate of duty and va....
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....d goods." It could thus be seen that the question which was involved was as to at what rate the duty was payable. Whether at 16% as per notification No. 8/1997 or in accordance with the provisions of Proviso to Section 3(1) of the Act of 1944. Apart from that there was also a dispute regarding the value on which duty was payable. 22 In so far as the Judgment of the Division Bench in the case of the Commissioner of Central Excise & Service Tax, Pune v/s. M/s. Credit Suisse Services (I) Pvt.Ltd. (cited supra), the question that arose for consideration was as to whether the services wholly in SEZ area are taxable or not in view of the notification dated 3rd March, 2009 and amended on 29th May, 2009. The Division Bench observed thus in paragraph­20 : "The taxability of the services and the rate at which they could be subjected to tax are matters which would have to be gone into by this Court in the present appeal." It could thus be seen that the question as to whether taxability of the services and the rate at which they could be taxed, was required to be gone. In that view of the matter, the Division Bench held that the appeal would lie before the Apex Court....
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.... of India has been paid after 7th July, 2009. 26 The notification dated 27/2/2010 reads thus : "In exercise of the powers conferred by clause (a) of the section (6) of section 6, and clause (a) of sub­section (7) of section 7, of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976), and in supersession of the Government of India in the Ministry of Finance (Department of Revenue) notification No. 1/2002­ Service Tax, dated the 1st March, 2002, published in the Gazette of India, Extraordinary, vide number G.S.R. 153 (E), dated the 1st March, 2002, except as respects things done or omitted to be done before such supersession, the Central Government hereby extends the provisions of Chapter V of the Finance Act, 1994 (32 of 1994), to the areas specified in column (2) of the Table below, in the continental shelf and exclusive economic zone of India for the purposes as mentioned in column (3 of the said TABLE :­ Sl. No. The areas in the Continental Shelf and the Exclusive Economic Zone of India Purpose 1 2 3 1 Whole of continental shelf and exclusive economic zone of....