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TMI Blog2014 (2) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... d necessary to reproduce Section 83 of the F. Act and Section 35G & 35 L of CE Act, which are as under: SECTION 83 OF F. Act "Section 83. Application of certain provisions of Act 1 of 1944 - The provisions of the following section of the Central Excise Act, 1944 ( 1 of 1944), as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise: - 9C, 9D, 11, 11B, 11BB, 11C, 11D, 12, 12A, 12B. 12C, 12D, 12E, 14, 15, 33A, 35F to 35-O (both inclusive), 35Q, 36, 36A, 36B, 37A, 37B, 37C, 37D and 40." SECTION 35G OF CE Act "Section 35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order 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), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." SECTION 35 L OF CE ACT 35L. Appeal to the Supreme Court - An appeal shall lie to the Supreme Court from - (a) any judgment of the High Court delivered - (i) in an appeal made under section 35G; or (ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under section 35H, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal 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." 3. Section 83 of the F. Act stipulates that Sections 35G & L of the CE Act shall mutatis mutandis apply and accordingly, appeals would be made to the High Court and Supreme Court against decisions of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there cannot be a dispute as to rate of tax when the question only relates to exigibility or levy of tax. 5. Section 65(121) of F. Act states that words and expressions used but not defined in Chapter V of the F. Act but are defined in CE Act or Rules, then definitions made thereunder shall apply in so far as may be in relation to service tax. In this manner, definitions, clauses or words and expressions used in the CE Act and Rules have been made applicable and apply when we interpret the said words and expressions used in the F. Act. 6. The issue in question has been answered by Division Bench of this Court in Commissioner of Income Tax vs. Delhi Gymkhana Club Ltd. 2009 (16) STR 129 wherein the Division Bench referred to a similar argument raised by the Revenue, rejecting the same it was held: "13. The submission of Mr. Mukesh Anand, learned counsel appearing for the appellant, however, is that such an appeal is maintainable and to substantiate his contention, he has relied upon the provisions of the Finance Act, 1994 vide which service tax was introduced. His submission was that the question of law raised in this appeal is as to whether the respondent club is liable to pay se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequently. Submission of the Revenue is that the decision of Delhi High Court in Delhi Gymkhana Club Ltd. (supra) requires reconsideration and the issue should be referred to a Larger Bench as the question of chargeability or levy under a particular provision or Section, is not a matter relating to rate of tax or valuation. 8. We have given due consideration to the contention raised but, after due deliberation do not think that the Delhi Gymkhana Club Ltd. (supra) requires reconsideration and reference to a Larger Bench. At this stage, we would notice and reject the contention of the appellant Revenue that the issue raised in Delhi Gymkhana Club Ltd. (supra) was relating to rate of tax and not chargeability or very levy of tax. The contesting respondents have produced before us, the appeal paper book and pointed out that the issue raised was whether the said club when offering services to members etc. would fall under the definition of "Mandap Keeper" under Section 65(90) of the F. Act. The contention of the club was that on the principle of mutuality of interest between the club and the members, the activities were not chargeable or exigible to tax as a mandap keeper. In the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oach that we have taken is a more direct. We reiterate, it is not the content of the appeal that is determinative of whether the appeal would be maintainable before the High Court or not but rather the nature of the order which is impugned in the appeal which determines the issue." 10. This brings us to the decision of the Supreme Court in Naveen Chemicals manufacturing & Tading Co. (supra). In the said case, the assessee had filed an appeal before the Supreme Court against the order of the appellate tribunal. The original adjudication order had directed confiscation under Section 111(d) of the Customs Act, 1962 read with Section 5 of the Imports & Export (Control) Act, 1947 (IEC Act, for short) but had given option under Section 125 of the said Act to the assessee to pay fine of Rs.10,000/- in lieu of confiscation. The contention of the assessee was that the order of the Customs, Excise and Gold (Control) Appellate Tribunal affirming the direction in the original adjudication order was invalid as it was passed by a single member Bench whereas the appeal should have been heard by a Division Bench of the appellate tribunal. The Supreme Court interpreted Section 129C of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any direct or proximate relation, for the purposes of assessment, either to the rate of duty applicable to the said goods or to the value thereof. All that the Additional Collector's order did was to confiscate the said goods allowing to the appellant the option of redeeming them upon payment of fine of Rs. 10,000/-. That the appellant might avail of the option, pay the fine and clear the said goods, when questions as to the rate of duty and value for purposes of assessment might possibly arise, is far too remote a contingency to satisfy the test that is laid down." 12. Submission of the Revenue is that the said judgment refers to sub-section (5) to Section 129D which was added by Customs & Central Excise Laws Amendment Act, 1988. It is submitted that the sub-section had influenced the ratio and finding of the Supreme Court as explanation to the said Section for the purpose of Section 129D had by deeming fiction defined the expression "rate of duty". It was submitted that provisions of Customs Act are not applicable to F. Act. 13. In fact sub-section (5) to Section 129D was never enforced and stands deleted from the said statute by Act 25 of 2004 w.e.f. 21st December, 2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of points arising out of the decision or order of the Collector. Sub-section (2) relates to power of the Collector to call for and examine any record of any adjudicating authority subordinate to him and pass orders; or to apply to Collector (Appeals) for determination of such points. The said provision as noticed was inserted by Customs and Central Excise Laws (Amendment) Act, 1988, but was never enforced. Explanation to sub-section (5) to Section 34E and sub-section (5) to Section 129D were made in the context of Customs, Excise and Revenue Tribunal Act, 1986 which provided for appeals to the new tribunal in relation to matters relating to rate of tax and valuation instead of the appellate tribunal i.e. CEGAT. 16. Another contention raised on behalf of the Revenue is that Section 66 is a charging Section but also stipulates the rate of tax. Thus question of rate of tax does not arise in service tax. The contention in fact supports the stand of the contesting respondent assessees as chargeability, valuation and rate of tax are interconnected. 17. Reference was made by the counsel for the Revenue to paragraph 11 in the judgment in the case of Naveen Chemicals Manufacturing (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er observed that statutory definition accords to the meaning given to the expression above. For the purpose of present controversy, we are inclined to ignore and not take into consideration explanation 5 to Section 129D or sub-section 5 to Section 35E. However, inspite of the said position, we do not think that the decision in the case of Delhi Gymkhana Club Ltd. (supra) is required to be referred to a Larger Bench. 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. 19. If the reasoning given by the Revenue is to be accepted, it will lead to anomaly and substantial confusion. All assessments necessarily have to determine and decide the rate of tax after determining an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he F. Act and the provisions do not postulate different rates of tax unlike CE Act and the Customs Act. We do not think that the aforesaid argument or ratio can be applied to the appeals under the two provisions of the F. Act as the Gauhati High Court has observed that levy and calculation of excise duty was separate from education cess which was only a surcharge levied on a flat rate of aggregate of all dues of excise levied. It was held that surcharge did not have direct or proximate relation for the purpose of assessment to the rate of duty applicable. 22. Mr. Dev Nath had also relied upon the two decisions of Obeetee Textiles Pvt. Ltd. vs. Commissioner of Central Excise 2011 (272) E.L.T. 11 (All.) and Videocon Industries Ltd. vs. Commissioner of Customs, Aurangabad 2011(263) E.L.T. 28 (Bom.) on the issue whether the appeal or writ petition would be maintainable against an order of predeposit passed by the appellate tribunal. The said question does not arise for consideration in the present appeals. 23. In view of the aforesaid discussion, we reject the prayer of the Revenue to refer the matter to Larger Bench. 24. We are bound by the decision of the Division Bench of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, the notice/demand was time barred as the assessee had not intentionally or willfully suppressed facts. Therefore, the extended period under Section 73(a) or 73(1) was not applicable. Thus, 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. CEAC 40/2013, CST v. M/s BSR and Co. 28. Substantial questions of law raised by the Revenue read:- "Whether the respondent herein is liable to pay service tax on fees charged for services rendered for complying with different types of laws in the country and also on representational service under section 56(105)(r) read with section 65(65) of the Finance Act, 1994?" 29. The issues involved in this case are identical and similar to the issues involved in CEAC 12/2013. In fact, the tribunal has followed the judgment in the case of Ernst & Young Pvt. Ltd. The present appeal accordingly will not be maintainable before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the appeal would not be maintainable before the High Court under Section 83 of the F. Act read with Section 35G of the CE Act. CEAC 29/2013, CST v. M/s GMK Concrete Mixing Pvt. Ltd. 36. The substantial question of law raised in the present appeal by the Revenue reads:- "Whether the contract between the parties for supplying Ready Mix Concrete (RMC) along with transporting, pumping, pouring, placing, spreading, laying of RMC at the construction sites is a taxable service under the Finance Act, 1994?" 37. The question of law or the issue raised is identical to the question/issue raised in CEAC 23/2013, CST v. M/s Ultratech Concrete Ltd. The present appeal, therefore, would not be maintainable. The subject matter of adjudication relates to rate of duty. CEAC 39/2013, CST v. M/s Bharti Televentures Ltd. 38. The substantial question of law raised in the present appeal by the Revenue reads as under:- "Whether the "Liaison charges" charged by the party for the "Liaison work" would merit to be considered as taxable services under the ambit of "Management Consultancy Services" which are taxable under Section 65(105)( r) of the Finance Act, 1994?" 39. The question raised is whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided the issue in favour of the assessee and has held that the activities were not covered under the head "airport service". Observations on whether the said service falls under the head "business auxiliary service" have been made, but it was observed that the said aspect was not relevant as it was not the subject matter of the adjudication order. The question raised in the present appeal also relates to rate of tax as the issue is whether the respondent-assessee was providing "airport services" under Section 65(105)(zzm) of the F. Act or "services" could have been taxed otherwise. ST. Appeal 1/2012, CST v. ITC Welcome Group Port Lounge 44. The substantial question of law raised in the present appeal by the Revenue reads as under:- "Whether services rendered by the assessee would be taxable under the category of "Airport Services" or otherwise?" 45. The issue raised in the present appeal is identical to the issue involved in ST Appeal No.2/2012 in the case of Oberoi Flight Services. Accordingly, the present appeal too would not be maintainable as it relates to rate of duty. 46. In view of the findings recorded above, the aforesaid appeals are not maintainable before the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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