TMI Blog2014 (2) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t against the decision of the High Court rendered under Section 35G, reference made by the appellate tribunal before the first day of July, 2003 or on a reference under Section 35H of the CE Act. Sub-clause (b) stipulates that an appeal before the Supreme Court would lie against the order passed by the appellate tribunal which includes amongst others, question or issue in relation to rate of duty of service tax or value of services for the purpose of assessment. Section 35G stipulates that any order passed by the appellate tribunal made on or after first day of July, 2003, is appealable before the High Court on a substantial question of law, except an order which among other things, determines any question relating to duty of service tax or value of a service for the purpose of assessment. 4. The precise and significant issue which arises for consideration is 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 . The contention of the Revenue i.e. the appellant is that the expression rate of duty or value of service should be construed in a narrow manner, to mean a pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 65 read with Section 67 and 105 of the Finance Act, 1994. He submitted that though the present appeal has been filed under Section 35G of the Act but the dispute relates to the levy of the service tax against the respondent under the Finance Act, 1994 which is defined under Section 65 (66 67) of the said Act. The classification of the taxable service is defined in Section 65A of the Finance Act, 1994. The charge of service tax within India and outside India is provided under Section 66 and 66A of the said Act. According to him, what will be the valuation of taxable service for charging service tax is well-defined under Section 67 as well as the Service Tax (Determination of Value) Rules, 2006 vide Notification No. 12/2006-ST dated 19.4.2006. Thus, he argued that in the present appeal there is no question regarding any right of duty or value of goods for the purpose of assessment of any duty. The only question is as to whether the respondent is liable to pay service tax for the services rendered by it in view of Section 65 read with Sections 67 and 105 of the Finance Act. 14. This argument needs outright rejection. Appeal provision is Section 35G, under which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said service would be taxable did not arise for consideration and issue of rate of tax or valuation of taxable service was not a subject matter of the original adjudication order. 9. Before we examine other judgments, it is important to examine the language of Section 35G in the bracketed portion which relates to matters in which appeal is to be filed before the Supreme Court. Section 35L of the F. Act is specific. The words/expression used is determination of any question in relation to rate of duty or value for the purpose of assessment . The word any and expression in relation to gives appropriately wide and broad expanse to the appellate jurisdiction of the Supreme Court in respect of question relating to rate of tax or value for the purpose of assessment. Further, if the order relates to several issues or questions but when one of the questions raised relates to rate of tax or valuation in the order in the original, the appeal is maintainable before the Supreme Court and no appeal lies before the High Court under Section 35G of the CE Act. Referring to the expression other things in Section 35G of the CE Act in the case of Bharti Airtel Limited 2013 (30) STR 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers and functions of Appellate Tribunal may be exercised and discharged by Benches constituted by the President from amongst the members thereof. (2) Subject to the provisions contained in Sub-sections (3) and (4) a Bench shall consist of one judicial member and one technical member. (3) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment shall be heard by a Special Bench constituted by the President for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member and one technical member. (4) The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allocated to the Bench of which he is member where- (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under Section 125; or (b) in any disputed case, other than a case where the determination or any question having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on; For the purposes of this subsection, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question- a) relating to the rate of duty of excise for the being in force, whether under the Central Excise Tariff Act, 1985 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 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 Schedule to the Central Excise Tariff Act, 1985, or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 or the Additional Duties of Excise (Textiles and Textile Articles) Act, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t will be seen that Sub-section 5 uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes 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 purposes of assessment are questions that squarely fall within the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivity is chargeable or tax can be levied. Assessments against the assessee would decide the rate of tax applicable once it is held that the activity is chargeable to tax under the F. Act. 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. 20. The Supreme Court has been entertaining and deciding appeals under the CE Act when questions have arisen whether the assessee had manufactured marketable goods and was accordingly liable to pay excise duty [see Metlex (I) Pvt. Ltd. v. Commissioner of Central Excise, New Delhi 2004(165) E.L.T. 129 (S.C.); Commissioner of Central Excise, Jaipur vs. Mahavir Aluminium Ltd. 2007 (212) E.L.T. 3 (S.C.); Nestle India Limited vs. Commissioner of Central Excise, Chandigarh 2009(235) E.L.T. 577 (S.C.)]. Similar question had also arisen in Civil Appeal No. 17877/2011, Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi Gymkhana Club Ltd. (supra) 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. Accordingly, we proceed to deal with the issue or issues, which were the subject matter of original assessment/adjudication order, which is the determining factor and the question(s) of law raised in each case, arising out of the adjudication by the tribunal. CEAC 12/2013, CST v. Ernst Young Pvt. Ltd. 25. The substantial questions of law raised by Commissioner read as under:- Whether providing assistance required for complying with regulation of services like RBI, FIB,IEC fling and taxation compliance like filing of income tax returns, filing of returns with the office of Registrar of Companies, filing of Sales Tax returns and other returns under Sales Tax/ Central Sales Tax Act and providing compliance, assistance under various laws will fall within the ambit of Management Consultancy Services which are taxable under Section 65(105)( r) of the Finance Act, 1994 as applicable during the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court under Section 83 of the F. Act read with Section 35G of the CE Act. CEAC 53/2013, 54/2013, 55/2013, 56/2013 , CST v. Interocean Shipping (I) Pvt. Ltd. 30. The substantial question of law raised in the present appeal by the Revenue reads:- Whether providing the services acting as ship brokers can be treated Commission Agents of the ship owner or ship charterer and thus are covered by the definition of Business Auxiliary Service as defined under Section 65(19) read with Section 65(105)(zzb) of the Finance Act, 1994 as applicable during the period October, 2003 to September, 2009? 31. As per Revenue, during audit it was noticed that the assessee had income from brokerage, but was not paying service tax on the same. In the adjudication proceedings, the assessee contested and had submitted that the said activity was not taxable under the head business auxiliary services as the assessee was not a commission agent under Section 65(105) (zzb) of the F. Act. The assessee was acting as an advisor to both the vessel owner and the charterer. The stand of the assessee has been accepted by the tribunal. 32. The question raised is whether the assessee was liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39. The question raised is whether liaison charges/management support charges were taxable and fall under the ambit of the management consultancy service defined under Section 65(105) (r) of the Act. The question relates to rate of tax as no tax would be payable in case the stand of the respondent-assessee is accept. The present appeal under Section 83 of the F. Act read with Section 35G of the CE Act is not maintainable before the High Court. CEAC 26/2013, CST v. Aryan Cool Beneficiation Pvt. Ltd. 40. The substantial questions of law raised in the present appeal by the Revenue reads as under:- Whether the benefication/washing of coal activity carried out by the party prior to period 1.06.2007 is covered by the category of Business Auxiliary Services? Whether the activity of loading/unloading of the coal carried out by the party for bringing the coal into washery would fall under the category of Cargo Handling Services? 41. The respondent-assessee is engaged in the activity of washing of coal, which they claim amounts to manufacturing and, therefore, was not covered under the head business auxiliary service or cargo handling service . Loading and unloadi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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