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2023 (8) TMI 543 - HC - Service TaxMaintainability of appeal - appeal to Supreme Court (appropriate Forum) - Section 35H and 35L of the Central Excise Act, 1944 - Determination of taxability - Franchisee service - whether in relation to services in question, any tax can at all be levied under the provisions in question? - HELD THAT:- Sub-section (2) of Section 35L, itself clarifies that for the purpose of Chapter VI-A, the determination of any question having a relation to the rate of duty, shall include the determination of “taxability” or “excisability” of goods for the purpose of assessment. A Full Bench of this Court in case of Commissioner of Central Excise, Mumbai-V Commissionerate Vs. M/s. Reliance Media Works Ltd. [2019 (12) TMI 392 - BOMBAY HIGH COURT] also dealt with such issue that the appeals which arises from the orders of the Tribunal which relate to taxability or excisability passed prior to 6 August, 2014, i.e., the date on which Section 35L(2) of the 1944 Act, came to be inserted, being an issue on rate of duty, would be appealable only before the Supreme Court and not before the High Court. The Full Bench also held that the amendment made to Section 35L of the Act was clarificatory in nature and, had a retrospective in operation. Even otherwise Section 35H of the 1944 Act which provides for an appeal to the High Court, clearly carves out an exception in regard to exclusion of matters not relating, amongst 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, which is now the legislative clarification as provided by an amendment as incorporated to Section 35L by insertion of sub-section (2), which is a clarification in relation to the entire Chapter in question namely Chapter VI-A dealing with the Appeals. The present appeals raise an issue on the taxability of the services in question, hence these appeals are not maintainable before this Court.
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