TMI Blog2018 (9) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... of the statute, which are in force. In fact, it specifically refers to Section 35G of the Act. Thus, we find no merit in the above submission. This appeal is not maintainable before this Court and the remedy, if any, to the appellant is to file an appeal before the Hon'ble Supreme Court under Section 35L(1)(b) of the Act - appeal disposed off. - CENTRAL EXCISE APPEAL NO. 124 OF 2017 - - - Dated:- 6-9-2018 - M.S. SANKLECHA RIYAZ I. CHAGLA, JJ. Mr. Vipinkumar Jain a/w Mr. Nikhil Rungta a/w Prabhakar Shetty for the appellant Ms. P.S. Cardozo for the respondents. P.C. 1. This appeal under Section 83 of the Finance Act, 1994 read with Section 35G of the Central Excise Act, 1944 (the Act) challenges the order dated 9th July, 2014 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal). 2. The appeal as filed inter alia raised the following question of law for our consideration : (a) Whether in the facts and circumstances of the case, the Tribunal was correct in overlooking the fact that the head cargo handling services specifically covers services rendered by a container Freight Station , which the appellant was and still sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegory of Storage and Warehousing services, not classifiable under the head Cargo Handling services. Thus, a show cause-cum-demand notice was issued. The respondent resisted the same. The Commissioner of Central Excise by order dated 5th September, 2007 adjudicated the show cause notice, confirming the classification of the service of keeping, storing etc. at the CFS under the head 'storage and warehousing'. 6. Being aggrieved, the Appellant preferred an appeal to the Tribunal. The impugned order dated 9th July, 2014 has held that the services rendered by the appellant at the CFS would fall under the head Storage and Warehousing services and not be covered under the head Cargo Handling services. This after negativing the appellant's contention that the services rendered by it to the MLIL and others at the CFS was in the nature of Cargo Handling services and excluded from tax as it was in the course of export. 7. Ms. Cardozo, the learned Counsel, raised a preliminary objection that the impugned order revolves on issue of classification of the services either as Cargo Handling services or Storage and Warehousing services. Thus, an appeal in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of C.Ex. S.T. Pune Vs. Tirupati Lpg Industries Ltd. 2017 (351) E.L.T. 149 to contend that the decision of the Apex Court in Navin Chemicals Mfg. Trading Co. Ltd. Vs. Collector of Customs 1993 (68) E.L.T. 3 which has set out the issues which would be outside the jurisdiction of the High Court to entertain and subject to the jurisdiction of the Supreme Court was on the basis of Section 129D(5) of the Customs Act which has not been brought into force and, therefore, could have no application; and (c) When the Finance Act, 1994 was introduced, it made reference to various sections of the Act. However, it specifically omitted to make reference to Section 35E(5) of the Act (similar to Section 129D(5) of the Customs Act). Thus, the legislature had taken a conscious decision in case of service tax under the Finance Act, 1994 to depart from the issues which would be subject matter of jurisdiction before this Court as provided under the Act. For all the above further reasons, it was submitted that this Court should entertain the present appeal. 10. It was also urged on behalf of the appellant that the question whether this Court has jurisdiction to entertain an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or services classifiable under Storage and Warehousing services as contended by the Revenue. According to the Revenue, a part of the consideration received is for services rendered under the head Storage and Warehousing services while according to the appellant, the entire services are classifiable under the head Cargo Handling services. Thus, the dispute is with regard to classification of services. It is only after the service is classified into its appropriate head would the question of exclusion of export services from service tax, if classifiable under the head Cargo Handling Services would arise. Thus, the primary issue which would arise is classification of the Services of giving space for storage to MLIL and others for consideration. In fact, the Apex Court in Navin Chemicals Mfg. (supra) has made a reference to Sub-section 5 of Section 129D of the Customs Act which defines the meaning of the word rate of duty or value of goods for the purposes of assessment and inter alia the classification of goods under one heading or the other of the Customs Tariff Act, would be a question relating to the rate of duty or value of goods in relation to goods for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. (emphasis supplied) 12. Thus, the Apex Court having decided that the classification issue in Navin Chemicals Mfg. (supra) is an issue of rate of duty and / or value of goods for the purposes of assessment, the same is binding upon us. Therefore, in view of Section 35G(1) of the Act which specifically prohibits an appeal being entertained by this Court, if it is an order of the Tribunal relating amongst other things to the determination of any question having arisen on account of rate duty or the value of goods for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act is retrospective or prospective. This as the amended provision has no application to the present facts. 14. The contention of the Appellant that Section 35G of the Act, has no application to the Finance Act, 1994 is on the basis of Section 35E of the Act is not referred to in Section 83 of the Act. This is so as Section 83 of the Finance Act, 1994 only makes reference to such provisions of the statute, which are in force. In fact, it specifically refers to Section 35G of the Act. Thus, we find no merit in the above submission. 15. It is also contended that the scope of an appeal to the Supreme Court under Section 35L of the Act is limited and, therefore, this Court should entertain this appeal. Reliance was placed upon the decision of the Supreme Court in Steel Authority of India Ltd. v/s. Designated Authority D.G. 349 ELT 193 . In the above case, the Apex Court had while dealing with an appeal under the Customs Act, 1962 held that the statutory provision namely Section 130E(b) of the Customs Act (similar to Section 35L(I) (b) of the Act except that the amendment of 2014 by insertion of sub-section (2) in Section 35L of the Act, is not done under the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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