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2014 (2) TMI 1133 - HC - Service TaxMaintanability of appeal before High Court - Jurisdiction - what is meant by the term “determination of any question having relation to rate of duty (for service tax) or value (of service) for the purpose of assessment” - Invocation of extended period of limitation - revenue prayed to refer the matter to larger bench - Held that:- Determination of any question relating to rate of tax would necessarily directly and proximately involve the question, whether activity falls within the charging Section and service tax is leviable on the said activity. The said determination is integral and an important injunct to the question of rate of tax. In case service tax is not to be levied or imposed and cannot be imposed under the charging Section, no tax would be payable. The said determination would be direct or proximate to the issue of rate of tax, which will include nil tax, when no tax is chargeable. The words “rate of tax” in relation to rate of tax would include the question whether or not the activity is exigible to tax under a particular or specific provision. This will be a reasonable and appropriate interpretation and will not cause or result in confusion or ambiguity regarding the appellate forum. Line between exigibility and rate of tax as propounded can be rather thin and superfluous in the present statutory context. Prayer of the Revenue to refer the matter to Larger Bench rejected - We are bound by the decision of the Division Bench of this Court in the case of Delhi Gymkhana Club Ltd. (2009 (8) TMI 65 - DELHI HIGH COURT) and respectfully following the ratio for the reasons set out above. We shall now examined facts of each of the present appeals to decide and determine whether they are maintainable under Section 83 of the F. Act read with Section 35G of the CE Act. In an present appeal the primary issue and question is whether Section 65(105) (r) was applicable in respect of the said activities and in case it was not applicable, no service tax was payable. The rate of tax would be “Nil”. As held above, Section 83 of the F. Act read Section 35G of the CE Act is not applicable and, therefore, the present appeal is not maintainable before the High Court. - all appeals dismissed involving similar cases - Decided against Revenue.
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