TMI Blog2022 (11) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 - the High Court has jurisdiction to entertain the appeal against an order of the Tribunal determining the taxability of a service under the provisions of the Finance Act, 1944 [Chapter V Service Tax Act] as the dispute was not relevant to valuation or rate of tax. The decision of this Court in S. Senniappa Mudaliar V. The Government of Madras, [ 1964 (9) TMI 91 - MADRAS HIGH COURT] was followed by a Full Bench of the Kerala High Court in M.Syed Alavi and Others Vs. State of Kerala , [ 1981 (5) TMI 113 - KERALA HIGH COURT] . It held that an order of remand remanding a case back is to be held as an interlocutory order. The Court further held that while the authority passing order pursuant to remand order was bound by remand order, the Appellate Courts / Authorities are not bound by it. The activity carried out by the appellant was not that of the clearing and forwarding agent as the appellant was not physically handling the goods on behalf of its client Therefore, though the Tribunal had earlier concluded that the appellant was liable to pay the service tax as that of a clearing and forwarding agent vide Final Order No.808/2005 dated 03.06.2005 impugned in C.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act) Section 65(72)(j) of the Chapter V of the Finance Act, 1994 (Service Tax Act) 65.Definitions :- (1) . (16) clearing and forwarding agent means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent; 65.Definitions :- (1) . (72) taxable service means any service provided,__ (a) .. (j) to a client, by a clearing and forwarding agent in relation to clearing and forwarding operations, in any manner; 8. The specific case of the appellant was that the appellant was not providing any taxable service of a clearing and forwarding agent to M/s.Grasim Industries Ltd. as it was not physically dealing with the goods namely, cement on behalf of its client M/s.Grasim Industries Ltd. The case of the appellant is that it was maintaining the records, party ledger, credit / debit notes, reconciliation with factory records and attending to services in respect of insurance claim lodgment et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissionerate, Service Tax Cell filed an appeal in Appeal No.S/100/2004 before the Appellate Tribunal against the said order dated 03.08.2004 of the Commissioner (Appeals) in Order-in-Appeal No.81/04 (M-II) (ST). 14. The Appellate Tribunal vide its first mentioned Final Order No.808/2005 dated 03.06.2005, partly allowed and partly dismissed the appeal filed by the Department in Appeal No.S/100/2004 by holding that the decision of the Tribunal in Prabhat Zarda Factory (India) Limited case referred to supra , was not properly considered by the Appellate Commissioner and therefore, the Order-in-Original No.45/2003 dated 16.01.2004 was liable to be restored. Since the plea of limitation raised by the appellant and the benefit of Section 80 of the Finance Act, 1994 [Chapter V - Service Tax Act] and penalty imposed under Section 76 of the Finance Act, 1994 [Chapter V - Service Tax Act] were not considered, the case was remitted back to the Appellate Commissioner for passing a fresh order. Thus, the remand was for a limited purpose. 15. Aggrieved by the said Final Order No.808/2005 dated 03.06.2005 in Appeal No.S/100/2004, C.M.A.No.951 of 2008 has been filed. 16. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a day prior to the Board s Circular dated 20.02.02 wherein the Board has made it clear that the parameters of clearing and forwarding operations spelt out in their earlier circular dated 11.07.97 are exhaustive and not illustrative and without distinguishing the facts involved in the case of the appellant to that of the one involved in the above decision? C.M.A.No.696 of 2010 i. Whether the appellate tribunal after admitting that the activities performed by the appellant did not fell within the ambit of the taxable service of clearing and forwarding agency within the meaning of the Act was right in restricting its finding only to the issue involving the question of imposition of the penalty on the appellant and not for the invocation of the extended period of time for the purpose of demand of the tax in terms of Section 73 of the Finance Act? ii. Whether the order of the appellate tribunal sustaining the demand under Section 73(1)(a) of the Finance Act, 1994, as existing at the material time was in accordance with the express provisions contained in the said provision in the facts and circumstances of the case? 18. Appearing on behalf of the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 [Chapter V Service Tax Act] as it stood during the relevant period and Section 35-G of the Central Excise Act, 1944 as made applicable to the Section 83 of the Finance Act, 1944 [Chapter V Service Tax Act]. 24. Before dealing with the substantial questions of law raised by the appellant, we would like to clarify as to the jurisdiction of the High Court under Section 35-G of the Central Excise Act, 1944 as made applicable to the provisions of the Finance Act, 1944 [Chapter V Service Tax Act], particularly, to Section 83 of the Finance Act, 1944 [Chapter V Service Tax Act]. 25. Relevant Clause in Section 35-G of the Central Excise Act, 1944 as made applicable to Section 83 of the Finance Act, 1944 [Chapter V Service Tax Act], under which, these appeals have been filed against the impugned orders passed of the Appellate Tribunal reads as under: 35-G. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt rate of tax under the Finance Act, 1944 [Chapter V Service Tax Act] during the period in dispute for same service. Service Tax was payable at uniform rate for all services under Section 65(72) of the Finance Act, 1944 [Chapter V Service Tax Act] as it stood then and later under Section 65(105) of the Finance Act, 1944 [Chapter V Service Tax Act]. 31. If the dispute pertained to claim or denial of benefit of exemptions under a Notification under Section 93 of the Finance Act, 1944 [Chapter V Service Tax Act], it could be said that it pertained to a dispute relating to the rate of tax and therefore, this Court was barred under the exclusions in Section 35-G of the Central Excise Act, 1944. In such case, only the Hon ble Supreme Court has the exclusive jurisdiction under Section 35L of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1944 [Chapter V Service Tax Act]. In our view, the High Court has jurisdiction to entertain the appeal against an order of the Tribunal determining the taxability of a service under the provisions of the Finance Act, 1944 [Chapter V Service Tax Act] as the dispute was not relevant to valuation or rate of tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ker). It held that an order of remand remanding a case back is to be held as an interlocutory order. The Court further held that while the authority passing order pursuant to remand order was bound by remand order, the Appellate Courts / Authorities are not bound by it. 36. In particular, paragraph No.17 from the decision of the Full Bench of the Kerala High Court in M.Syed Alavi case referred to supra reads as under:- 17. In the instant case, it is true that no appeal was filed against the decision dated 12th April, 1976, of the Appellate Assistant Commissioner. The effect of non-filing of an appeal is that the finding is binding on the assessing authority when the case went back to that authority and also on the Appellate Assistant Commissioner while disposing of the appeal from the revised decision of the assessing authority. It is not binding on the Appellate Tribunal in the appeal filed under Section 9 a gainst the decision of the Appellate Assistant Commissioner. The Appellate Tribunal was free to arrive at its own decision on the question of liability of the petitioners to assessment to sales tax. 37. Therefore, though the Tribunal had earlier conclude ..... X X X X Extracts X X X X X X X X Extracts X X X X
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