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2019 (12) TMI 560 - SIKKIM HIGH COURTMaintainability of appeal - appropriate forum - Franchise service - failure to obtain service tax registration for providing franchise service, which is a taxable service - failure to discharge due service tax liability inclusive of Education Cess and Secondary & Higher Education Cess - HELD THAT:- A perusal of Section 35L (b) goes to show that an appeal against any order passed by the CESTAT 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 shall lie directly to the Hon’ble Supreme Court. Such order, as is noticed earlier, is not made appellable to the High Court, as Section 35G specifically excludes such an order from being a subject matter of an appeal before the High Court. A perusal of the judgment of the High Court of Delhi in Ernst & Young Pvt. Ltd. [2014 (2) TMI 1133 - DELHI HIGH COURT] goes to show that a contention was advanced by the Revenue that the expression ‘rate of duty’ or ‘value of service’ should be construed in a narrow manner limiting it to the rate of duty payable on the service chargeable to tax or the valuation of the service which is chargeable to tax and that the same will not encompass the question as to whether the activity is a taxable service under the charging section - The High Court of Delhi held that determination of any question relating to rate of tax would necessarily directly and proximately involve the question, which is, whether the activity falls within the charging section and service tax is leviable on the said activity. It was further held that 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 words ‘rate of tax’ in relation to rate of tax would include the question whether or not the activity is excisable to tax under a particular or specific provision. While respectfully following the decision of High Court of Delhi in Ernst & Young Pvt. Ltd., we also note that Sub-Section (2) of Section 35L, which was inserted by the Finance (No.2) Act, 2014 with effect from 06.08.2014, makes it abundantly clear that the determination of any question having relation to the rate of duty shall include determination of taxability or excisability of goods for the purpose of assessment. These appeals before this Court are not maintainable under Section 35G of the Act of 1944 - Appeal dismissed as being not maintainable.
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