TMI Blog2009 (8) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... eal under Section 35 of the Central Excise Act, 1944 (hereinafter referred to as the Act ). The impugned orders are passed by the Custom Excise Service Tax Appellate Tribunal (for short, CESTAT'). Learned counsel, who appeared for the respondents in CEAC No. 5/2007 challenged the maintainability of this appeal. Though nobody appeared for the respondents in the other appeal, since the question is about the maintainability of the appeal and the issue involved is the same, which is common to both the appeals, we took up both the appeals together. However, for the sake of convenience, we will take note of facts as they appear in CEAC No. 5/2009. 2. The respondent in this case is Delhi Gymkhana Club Limited. It was served with three show-cause cum demand notices dated 24.6.2002, 3.7.2003 and 18.5.2004 respectively. Service tax in the sum of Rs.22,93,564/-, along with interest payable till the date of its demand under Sections 73 and 75 of the Act, was demanded by these show-cause notices. Penalty under Sections 75A, 76, 77 and 78 of the Act was also proposed. The respondent submitted reply to these show-cause notices challenging the proposed move on the ground that no such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty available question of imposition of service tax cannot be made available. It is true to say that there is a clear distinction between the members club and proprietary club. No argument has been put forward by the respondents to indicate that the club is a proprietary club. Therefore, if the club space is allowed to be occupied by any member or his family members or by his guest for a function by constructing a mandap, the club cannot be called as mandap keeper, because the club is allowing his own member to do so who is, by virtue of his position, principal of the club. If any outside agency is called upon to do the needful it may raise a bill along with the service tax upon the club and the club as an agent of the members, is supposed to pay the same. The authority cannot impose service tax twice once upon the people carrying out the business of 'mandap keeper' as well as the members' club for the purpose of using the space for constructing or using it as 'mandap'. Therefore, apart from any other question possibility of double taxation cannot be ruled out. If I explain my first query as above it will be crystal clear that if a person being an owner of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 5. Other provisions of the Act, which are relevant for our purposes, may first be taken note of. 6. Section 35E deals with powers of the Board or Commissioner of Central Excise to pass certain orders. We are concerned with sub-section (5) and explanation thereto, which is in the following terms :- 35E. Powers of Board or Commissioner of Central Excise to pass certain orders. - xx xx xx (5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of duty or excise or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. Explanation. - For the purposes of this sub-section, the determination of a rate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party. (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. xx xx xx 8. Section 35L provides appeal to the Supreme Court and is couched in the following nature :- 35L. An appeal shall lie to the Supreme Court from - (a) any judgment of the High Court delivered on a reference made under section 35G or 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 the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed by the Appellate Tribunal 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 purposes of assessment. 9. It is clear from the above that against certain orders appeal is provided to the High Court, whereas in respect of certain ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 definition of the said expression to Sub-section 5 of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have, given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. 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, que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dispute relates to the levy of the service tax against the respondent under the Finance Act, 1994 which is defined under Section 65 (66 67) of the said Act. The classification of the taxable service is defined in Section 65A of the Finance Act, 1994. The charge of service tax within India and outside India is provided under Section 66 and 66A of the said Act. According to him, what will be the valuation of taxable service for charging service tax is well-defined under Section 67 as well as the Service Tax (Determination of Value) Rules, 2006 vide Notification No. 12/2006-ST dated 19.4.2006. Thus, he argued that in the present appeal there is no question regarding any right of duty or value of goods for the purpose of assessment of any duty. The only question is as to whether the respondent is liable to pay service tax for the services rendered by it in view of Section 65 read with Sections 67 and 105 of the Finance Act. 14. This argument needs outright rejection. Appeal provision is Section 35G, under which these appeals are filed. Therefore, that provision, along with Section 35L, is to be considered (as already done) to decide the issue of maintainability. Moreover, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
