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2022 (11) TMI 562 - HC - Service TaxJurisdiction of High Court to entertain the appeal - Levy of service tax - clearing and forwarding agent service or not - specific case of the appellant was that the appellant was not providing any taxable service of a clearing and forwarding agent to M/s.Grasim Industries Ltd. as it was not physically dealing with the goods namely, cement on behalf of its client M/s.Grasim Industries Ltd. - HELD THAT:- If the dispute pertained to claim or denial of benefit of exemptions under a Notification under Section 93 of the Finance Act, 1944 [Chapter V – Service Tax Act], it could be said that it pertained to a dispute relating to the rate of tax and therefore, this Court was barred under the exclusions in Section 35-G of the Central Excise Act, 1944. In such case, only the Hon’ble Supreme Court has the exclusive jurisdiction under Section 35L of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1944 - the High Court has jurisdiction to entertain the appeal against an order of the Tribunal determining the taxability of a service under the provisions of the Finance Act, 1944 [Chapter V – Service Tax Act] as the dispute was not relevant to valuation or rate of tax. The decision of this Court in S. Senniappa Mudaliar V. The Government of Madras, [1964 (9) TMI 91 - MADRAS HIGH COURT] was followed by a Full Bench of the Kerala High Court in M.Syed Alavi and Others Vs. State of Kerala, [1981 (5) TMI 113 - KERALA HIGH COURT]. It held that an order of remand remanding a case back is to be held as an interlocutory order. The Court further held that while the authority passing order pursuant to remand order was bound by remand order, the Appellate Courts / Authorities are not bound by it. The activity carried out by the appellant was not that of the clearing and forwarding agent as the appellant was not physically handling the goods on behalf of its client Therefore, though the Tribunal had earlier concluded that the appellant was liable to pay the service tax as that of a clearing and forwarding agent vide Final Order No.808/2005 dated 03.06.2005 impugned in C.M.A.No.951 of 2008 [2005 (6) TMI 5 - CESTAT, CHENNAI], nothing precluded the Tribunal from revisiting the issue afresh while passing the impugned Final Order No.1296/2009 dated 09.09.2000 which has been impugned in C.M.A.No.696 of 2010. Appeal allowed.
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