TMI Blog2016 (2) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... I. S. CHEEMA, JJ. For the Petitioner : Mrs. Kalpalata Patil Bharaswadkar, Advocate For the Respondent : Shri Arshad Hidaytullah, Senior Counsel i/by Mrs. Charuta S. Deshmukh, Advocate JUDGMENT PER S. V. GANGAPURWALA, J. :. Both these matters are concerning same subject matter and are between the same parties, as such are dealt together. 2. The petitioner in Writ Petition No. 3968 of 2002 Bajaj Auto Limited, Waluj (for short BAL ) is an assessee. The petitioners in the said petition assail the show cause notice dated 29th July, 2002 demanding service tax from the petitioners, so also seeks declaration that the second proviso to Rule 6 (as it then was) and Rule 2(1)(d)(iv) of the Service Tax Rules 1994 (hereafter referred as to the Said Rules for the sake of brevity) be declared ultra virus as being directs conflict with the charging section of the said Act i. e. Sec. 68 of the Service Tax Act {Finance Act} (for short Said Act ). This Court had admitted the writ petition by granting Rule on 29.10.2002. However, had refused the interim relief. As the interim relief was not granted, the proceedings pursuant to the said show cause notice impugned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax . According to the learned senior counsel the technical assistance fee and the royalty to be paid pursuant to the agreement between the respondent/assessee and Kawasaki Heavy Industries, Japan (for short KHI ) cannot be classified as service. As such it is not susceptible to the service tax. Even the CESTAT has held that royalty is not subject matter of service tax. Right to use trade mark is a transaction in property and not in consultancy or advice and that no consultancy or advice is involved. It is a transaction of intangible property, so also technical assistance does not come within the ambit and purview of service tax. The dispute come within the purview of rate of tax. The learned senior counsel relies on the judgment of the Division Bench of Kerla High Court in a case of C.C.E. Manglore Vs. Manglore Refinery Petrochemicals Ltd. reported in 2011 (270) E.L.T. 49 (Kar). According to the learned senior counsel, the said judgment stands confirmed by the Apex Court as the special leave petition filed against the said judgment is withdrawn by the department with liberty to file appeal, that is appeal U/Sec. 35L of the Central Excise Act to the Apex Court. The learned se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination of any question having relation to the rate of duty or to the value of goods, the dispute with regard to the assessable value is always maintainable before this Court. The learned counsel also relies on the judgment of this Court in a case of Commissioner of Central Excise Vs. Universal Ferro Allied Chemicals Ltd. reported in 2008 CJ (Bom) 568. 8. We have considered the submissions canvassed by the learned counsel for respective parties. We had apprised the learned counsel for respective parties that, we would be dealing with the aspect of the maintainability of appeal U/Sec. 35G of the said Act first and the arguments are heard on the ground of maintainability of appeal. 9. Before adverting to the contentions raised by the learned counsel for respective parties, it would be appropriate to refer to the relevant provisions of the Central Excise Act, 1944 i. e. Sec. 35G as it stood then and Sec. 35L as under : THE CENTRAL EXCISE ACT, 1944 1. .......... 35. Appeals to [Commissioner (Appeals)]. 35A .............. 35G. Appeal to High Court ( 1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 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.] 35L. Appeal to Supreme Court.[( 1)] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile appropriate appeal. The said judgment stands confirmed. 13. Even in a case of Sterlite Optical Technologies Ltd. Vs. Commissioner of Central Excise Aurangabad referred supra, this Court has held that term levy appears to be wider in its import than the term assessment. It is held that, it may include imposition of tax as well as assessment. Even in a case of Commissioner of Customs Vs. Motorola India Limited referred supra and relied by the learned counsel for the Department, the Karnataka High Court has observed as under : 41. Broadly the following disputes do not fall within the jurisdiction of High Court under Section 130 of the Act: (a) Dispute relating to the duty of customs payable on any goods. (b) The value of the goods for the purpose of assessment. (c) A dispute as to the classification of goods. (d) Whether those goods are covered by an exemption notification or not. (e) Whether the value of goods for the purposes of assessment is required to be increased or decreased. (f) Whether what is imported or exported is goods which attracts customs duty. 14. It has been held that, a dispute as to the classification of goods, so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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