TMI Blog2015 (3) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... und has to be taken. Therefore, even if the appellants were not eligible for refund under Notification No.9/2009-ST, the appellants were clearly eligible for refund under section 11B of the Central Excise Act, 1944. Therefore, the rejection of service tax refund is not sustainable in law. Clause (c) of explanation to section 35E(5) reveals as to how it covers a case of the goods being excisable at all or whether the rate of duty of excise on any goods is nil. This clause is an aid or guide with the assistance of which we can decide as to whether any question has a relation to the rate of duty of excise as appearing in section 35-G(1) of the Central Excise Act, 1944. - Preliminary objections are upheld - Appeal are not maintainable - Decided against Revenue. - Central Excise Appeal No. 5 of 2014 with C.E.A. Nos. 7-10 of 2014 - - - Dated:- 23-2-2015 - S. C. Dharmadhikari And S. P. Deshmukh,JJ. For the Petitioner : Mr. Vijay Kantharia with Mr. Jitendra B. Mishra For the Respondent : Mr. P. K. Sahu with Mr. Kaustubh Khairnar and Mr. Kuldeep Nikam JUDGMENT [Per S. C. Dharmadhikari, J.] 1. In this batch of appeals, the Revenue questions the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the law pronounced by the Hon'ble Supreme Court in the case of Navin Chemicals Manufacturing Trading Company Limited vs. Collector of Customs, 1993 (68) Excise Law Times, Pg. 3. He also relied upon the two orders passed by this Court following the Hon'ble Supreme Court judgment in the case of Commissioner of Central Excise, Nagpur vs. Universal Ferro Allied Chem. Limited, 2009 (13) Sales Tax Reports Pg. 418 and Union of India vs. Auto Ignation Limited 2002 (142) Excise Law Times, Pg.292. 7. He, therefore, submits that a reading of the order impugned in this appeal would show that this Court has to consider as to whether the subject service provided is exempt or not. The next question would be whether it is exempt under one Notification or the other. This very issue has a relation to the rate of duty and, therefore, cannot be determined by this Court. 8. Contesting this position, Mr. Kantharia appearing in all these appeals for the appellant-Revenue would submit that the only questions which are arising in these appeals are whether the West Zonal Bench of the Tribunal was right in holding that the refund of service tax was available to the assessee under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited and Wardha Power Company. The Tribunal concluded that the ratio in these decisions would enable the assessee before us to apply for refund of service tax paid on input services wholly consumed within the SEZ. The refund can be claimed under section 11B of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994 subject, of course, to the satisfaction of the conditions stipulated therein. 12. Section 35-G of the Central Excise Act, 1944, which has been relied upon, reads as under : 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 the 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 other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court shall, as far as may be, apply in the case of appeals under this section. 13. A bare perusal thereof would indicate that 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 the purpose of assessment. 14. The Tribunal in this case relied upon its own orders in the case of Tata Consultancy Services Limited and Wardha Power Company. Those appeals raised a question as to whether in respect of services which were wholly consumed and which were fully exempt from payment of duty, the benefit of the refund can be claimed and in terms of the Notifications referred above. The Tribunal concluded that Notifications exempt the taxable services specified in clause (105) of section 65 of the Finance Act, 1994, which are provided in relation to the authorized operations in a SEZ and received by a developer or units of SEZ, whether or not the said taxable services are provided inside the SEZ, from the whole of the service tax leviable ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be maintainable. The language of section 35-G particularly the words having a relation to the rate of duty of excise would, therefore, have a definite bearing on the present case. So long as there is an issue as to whether the services consumed within the SEZ are exempt or taxable, then, the same would be having a relation to the rate of duty. In Navin Chemicals Manufacturing and Trading, the controversy arose because the jurisdiction of a single Member of the then Customs, Excise and Gold (Control) Appellate Tribunal to hear an appeal was considered by the Hon'ble Supreme Court. In paragraph 2 of the judgment of the Hon'ble Supreme Court, the operative order of the Additional Collector of Customs has been reproduced. Thereafter, the Hon'ble Supreme Court construes the similar provision and having a similar language as section 35-G of the Central Excise Act, 1944, but appearing in the Customs Act, 1962. 17. Interpreting that provision and with the aid of the explanation relied upon by Mr. Sahu, the Hon'ble Supreme Court, in paragraph 11, held as under : 11. It will be seen that sub-section (5) uses the said expression 'determination of any quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Auto Ignation Limited, this Court upheld the preliminary objections and dismissed the appeal of the Revenue. 19. Mr. Kantharia would pursuade us to hold that in the present case, the issue as to whether or not the benefit of the exemption Notification as amended was available to the assessee was never in dispute in the show cause notice. The show cause notice proposed to reject the refund claim only to the extent of the service tax paid, although not payable on services wholly consumed in the SEZ for authorized operations. 20. If we read the questions of law framed and one of which now is stated to be not pressed by Mr. Kantharia viz. the question No.2, yet, what would essentially arise for our consideration is whether at all the services and which are stated to be exempt from tax could be subject matter of the refund application. If the refund applications are under the Notifications and as claimed, then, whether these Notifications would govern the claims or a substantial provision in the Act is the next question. If the Revenue is aggrieved by the fact that the Tribunal placed reliance on its earlier decision but which did not cover both issues but the incidental one, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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