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TMI Blog2024 (12) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... not for contravention of rule 6 (3A) of the 2004 Credit Rules? (ii) Whether service tax on excess baggage charges recovered from passengers should be leviable or not? (iii) Whether the provisions of section 73 (1) of the Finance Act was invokable for suppression of facts?" 4. The Commissioner, after a detailed discussion on the first issue, held that the demand for Service Tax which had been raised was not tenable. The operating portion of the said order qua the first issue is as under: "Here, in this case, the services of "Transport of passengers by Air" was introduced in July, 2010 for the first time. Thus, in the previous year, it was exempted from levy of Service Tax. The assessee had computed the tax on the basis of the actual figures (current financial year ratio) Rule 6 (3A) (h) of the Cenvat Credit Rules, 2004 lays down that in cases where services are being made chargeable to service tax for the first time in the current financial year i.e. in the previous year 100% services were exempt, then in that case no reversal was required to be made of Cenvat and in other words 100% of Cenvat was available for set off against the Output tax. However, at the end of the financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable to them, wherein, it has been clearly mentioned that service tax is chargeable at 10% of the gross value of the ticket or Rs. 100/- per journey, whichever is less. As service tax has been paid by the assessee @ Rs. 100/- per ticket on the total number of tickets sold, even if the consideration towards excess baggage was added in the total value of services, there would be no change in the number of tickets and the service tax amount would remain the same. I agree with this contention of the assessee and hold that the demand of Rs. 4.01 crores raised by the department in relation to excess baggage charges collected from passengers is not sustainable and hence requires to be dropped." 6. Insofar as the third issue i.e., invoking extended period of limitation in view of wilful suppression of facts as per Section 73 (1) of the Finance Act, 1994 was concerned, the Commissioner of Service Tax held that the extended period of limitation could not be invoked for issuance of the show cause notice. 7. The CESTAT in its order dated 3rd July, 2023, after recording the findings of the Commissioner of Service Tax on all three issues primarily held that the show cause notice itself had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court is satisfied that the case involves a substantial question of law. (2) The [Principal Commissioner of Central Excise or Commissioner of Central Excise] or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the [Principal Commissioner of Central Excise or 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. [(2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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;. (2) For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment." 11. In view of Sections 35G and 35L of the Central Excise Act, 1944 which applies in respect of Service Tax, whenever issues of determining taxability are involved, the appeal would lie to the Supreme Court. The same has been also been settled in a series of decisions. In Commissioner of Service Tax v. Ernst & Young Pvt. Ltd. and Ors., 2014 (2) TMI 1133-Del, the Coordinate Bench of this Court had observed and held as under: "9. Before we examine other judgments, it is important to examine the language of Section 35G in the bracketed portion which relates to matters in which appeal is to be filed before the Supreme Court. Section 35L of the F. Act is specific. The words/expression used is "determination of any question in relation to rate of duty or value for the purpose of assessment". The word "any" and expression 'in relation to" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low: "9. It is clear from the above that against certain orders appeal is provided to the High Court, whereas in respect of the certain other orders passed by the appellate tribunal, direct appeal to the Supreme Court is provided. Section 35L (a) deals with the appeals which are carried from the orders of the High Court. However, clause (b) stipulates the nature of orders passed by the appellate tribunal against which appeal is to be preferred to the Supreme Court. Where order passed by the appellate tribunal relates to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment, the aggrieved party is to approach the Supreme Court directly by filing appeal under Section 35L (b). This is made clear even by the provisions of Section 35G which provides for appeal to the High Court, as it specifically excludes the orders relating, among other things, determination of any question having relation to the rate of duty of excise or to the value of goods for the purpose of assessment. 10. The Supreme Court in the case of Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs, 1993 (68) E. L.T. 3 (S.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 11. In view thereof, it is clear that determination of any question in relation to rate of duty or to the value of goods for the purpose of assessment and when it is decided by the CESTAT, appeal thereagainst is provided to the Supreme Court under Section 35L (b) and no such appeal is permissible to the High Court." 13. Further, in the judgement of Commissioner of Service Tax, Delhi v. Bharti Airtel Ltd. [2013(30) S.T.R. 451 (Del.)], Division Bench of this Court considered the issues on maintainability of appeal while considering the decision of CESTAT on limitation issue and held as under: "3. On a plain reading of Section 35G of the Central Excise Act, 1944 it is clear that no appeal would lie to the High Court from an order passed by CESTAT if such an order relates to, among other things, the determination of any question having a relation to the rate of duty or to the valuation of the taxable service. It has nothing to do with the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question of limitation, this appeal would not be maintainable under Section 35G of the Central Excise Act read with Section 83 of the Finance Act, 1994. The objection taken by the learned counsel for the respondent is well founded. It is for this reason that we dismiss this appeal as being not maintainable." 14. Recently, a Co-ordinate Bench of this Court in ST Appl. No. 73/2012 titled as 'Commissioner of Service Tax v. Intertoll ICS CE Cons O & M Pvt. Ltd.', decided vide order dated 16th December, 2022, the Court has observed as under: - "4. The learned counsel appearing for the appellant also fairly states that it is now well settled that when the question of chargeability of an activity is concerned - such as in this case - appeal would lie to the Supreme Court and would not be maintainable before this court. She however expresses an apprehension that the appellant may be disabled from filing an appeal before the Supreme Court in view of the internal instructions regarding the pecuniary limit for filing such appeals." 15. Even in the present case, though CESTAT has only considered the issue of limitation and the said issue was framed for consideration vide order dated 23r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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