TMI Blog2018 (12) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... has taken away the right to appeal - Held that:- Right of appeal has not been taken away. Instead of an appeal in the High Court, an appeal would lie to the Hon'ble Supreme Court. Under the pre-amended regime, there was no second appeal provided to the Supreme Court - The contention of the appellant that pre-amended provision must apply to them as it takes away the right of appeal does not have any force. Appeals are not maintainable and is dismissed. - Civil Miscellaneous Appeal Nos.1143 to 1146, 1276 to 1279 of 2018 - - - Dated:- 9-10-2018 - Mr. Justice S. Manikumar And Mr. Justice Subramonium Prasad For the Appellant : Mrs.Pushya Sitaraman For the Respondent : Mr.A.P.Srinivasan COMMON JUDGMENT These appeals are directed against the order, dated 14/9/2017, passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai in final order No.42055 42062 of 2017. 2. All these appeals are being disposed of, by a common order, since the issue raised in the appeals is one and the same. 3. The appellant assessee is a Non-Banking Financial Institution. They are registered with the Department for payment of service tax, under various categories. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears that the services rendered by SFL in relating to facilities provided under Fleet card issued to fleet owners for purchase of fuel through the fleet card, are not covered under Section 66 D (n) of the Negative list of services. Also there is no notification providing for exemption for payment of service tax on the above services. From these, it appears that the operation definitely involves an activity carried out by one person viz., SFL to another viz., fleet card owner. Further, the consideration for this activity appears to be the charges mentioned in paragraph 3 supra. As both the above conditions are satisfied, it appears that the fleet card operations carried out by SFL would fall under the purview of the definition of 'service' as given under Section 65 B (44) of the Finance Act, 1994. Further, it appears that the Finance charges, Additional Finance Charges, etc., collected by SFL under the head Fleet Card Income are liable to service tax under the Finance Act, 1994. In view of this, it appears that SFL should have discharged Service Tax on the entire fleet card income earned during the period from April 2013 to March 2014. 5. Show cause notices stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest and penalty do not arise. 7. The Assessing Authority, after analysing the service rendered under a normal credit card and fleet card, came to the conclusion that fleet card transactions fall under the more specific classification of 'credit card services' rather than the general 'Banking and other financial services' and therefore the appellant is liable to pay service tax. Holding that the activity squarely falls within the ambit of Section 65 (33a) (iii) of the Finance Act,1994. Appellate Authority, held as under:- 19. On careful reading of the definition, it is clear that it does not mandate that the taxpayer have to receive any amount from the card issuer. It is sufficient if any service has been provided by them in relation to settlement of any amount transacted through Fleet card From study of the operations, I find that the fleet cards are used by the card holder at petrol outlets and the amounts incurred are charged to the cardholder's fleet card account maintained by SFL. As per the agreement between BPCL/IOCL and the Tax payer, the taxpayer have to make payment of the bills to the oil companies within three working days of such utilisati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amentally congruent to credit card services. As per clause (a) to sub- Section (2) of Sec.65 A, when for any reason, a taxable service is prima facie, classifiable under two or more subclauses of clause (105) of Section 65, the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description. Thus, I have no hesitation in holding that fleet card transactions fall under the more specific classification of 'credit card services' rather than the general 'Banking and other financial services'. (emphasis supplied) 8. Different assessment orders in original were passed, for various show cause notices. 9. In few cases, appeals filed before the Appellate Authority were rejected and in few case appeals were filed directly before the Customs, Excise and Service Tax Appellate Tribunal. We are not going into all those details because the question which arises in all the appeals, is as to nature of the services that has been provided by the appellant. The Tribunal stated that the dispute in the cases relates to the income accruing to the appellant, under the category of finance charge and additional financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransactions and therefore the service tax is not payable. 18. Appellant would also submit that Section 35 L of the Central Excise Act, 1944, was amended only in 2014 and since the period of dispute was prior to 2014, right of appeal to High Court cannot be taken away, as a right of appeal is a vested right and on the date when the show cause notice was issued, an appeal was provided to the High Court. According to the learned Senior Counsel, unamended provision would continue to apply and 35 L of the Central Excise Act, 1944, could not be understood to take away the vested right of the appellant to appeal to this Court. 19. Learned counsel for the appellant would heavily rely on the judgments rendered in (i). HOOSEIN KASAM DADA (INDIA) LTD. Vs. State of Madhya Pradesh {AIR 1953 SC 221}; (ii). GARIKAPATI VEERAYA Vs. N.SUBBAIYA CHOUDHURY {AIR 1957 SC 540}; (iii). VIDEOCON INTERNATIONAL LTD Vs SECURITIES EXCHANGE BOARD OF INDIA (Civil Appeal No.117 of 20015) of the Hon'ble Supreme Court. 20. Heard both the counsels on the issue of maintainability. 21. Appeal has been filed on the following substantial questions of law:- (i). Whether the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-Section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which - (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub- Section (1). (7) When an appeal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 35O (both inclusive}, 35Q,35R, 36,36A, 36B, 37A, 37B, 37C, 37D, 38A and 40. 24. The Hon'ble Supreme Court in Navin Chemicals Manufacturing Trading Company Limited Vs. Collector of Customs {1993 (68) ELT 2 (SC) has observed as under:- 8. Before we consider whether the case of the appellant fails within the said expression, we must note that Section 130 , Subsection (l)and Section 130-E , Clause (b) of the said Act also use the said expression and they refer respectively to the Statement of Case to the High Court on a reference by CEGAT and an appeal to the Supreme Court directly. Section 130(1) states that the Collector of Customs or the other party may require CEGAT to refer to the High Court any question of law arising out of an order under appeal before it provided it is not an order relating among other things to the 'determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment'. Clause (b) of Section 130-E provides that an appeal shall lie to the Supreme Court from 'any order passed by the Appellate Tribunal relating, among other things, to the determination of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riff Act, 1975 (51 of 1975), or that any goods are or not covered by a particular notification or order issued by the Central Government granting total or partial exemption from duty; or (d) whether the value of any goods for the purposes of assessment of duty shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act. 11. It will be seen that Sub- section 5 uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes of this sub-section'. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes/of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or amount of any other charges. The word 'rate' is used with reference both to a percentage or proportion of taxes, and to a valuation of property. 'Rate' is used in an Act declaring that the Legistlative Assembly shall provide by law for a uniform and equal rate of taxation and assessment, applies to the percentage of fixation, as used in connection with 'taxation' and to the valuation of the property, as used in connection with 'assessment'. It is a valuation of every man's estate or setting down how every one shall pay, or be charged with, to any tax. By the use of the expression 'rate' a relation between the taxable income and the tax charged is intended, but the relation need not be of the nature of proportion of fraction. The Explanation to sub-section (5) of Section 35E of the Central Excise Act, the expression includes the determination of a question relating to the rate of duty, to the value of goods for the purposes, of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for the purposes of assessment should be enhanced or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether a particular goods fall within which heading, subheading or tariff item or the description of goods as mentioned in column No.3 of the Central Excise Tariff Act , 1985. 43. From the aforesaid discussion, it is clear that an order passed by the Appellate Tribunal relating to the determination of any question having relation to the rate of duty of excise or to the value of goods for the purposes assessment lies to the Supreme Court under Section 35L (b) the Act and not to the High Court under Section 35(G) . 44. The intention behind this bifurcation of jurisdiction between the Apex Court and the High Court seems to be that more often than not, any decision on these aforesaid aspects not only affects the interest of the manufacturers who are parties thereto, but also to the manufactures of those products throughout the country. In a country governed by Parliamentary legislation because of the territorial bifurcation in forming states and because of the divergent opinion which is possible, the excise duty payable would vary from place to place. In order to bringing uniformity in the levy of excise duty throughout the country and consequently to see that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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