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2011 (4) TMI 542 - HC - Service TaxDemand - clearing and forwarding agent - Whether the activities carried on by the assesses fall within the category of consignment agent or clearing and forwarding agent or Business Auxiliary Services - The said question falls squarely within the exception carved out in Section 35G, 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 to the value of goods for purposes of assessment , and the High Court has no jurisdiction to adjudicate the said issue, as held by this Court in the case of Commissioner of Central Excise v. M/s. Mangalore Refineries and Petro Chemicals Limited, (2010 -TMI - 206880 - KARNATAKA HIGH COURT) - appeals are rejected
Issues:
1. Appeal against Tribunal's order on activities of assesses as consignment agents or clearing and forwarding agents. 2. Determination of whether the services provided fall under the category of "clearing and forwarding agent" as per Section 65(25) of the Finance Act, 1994. 3. Jurisdiction of High Court to adjudicate on the issue under Section 35G and the appeal route to the Apex Court. 4. Maintainability of the appeals and direction to the Revenue for further action. Issue 1: Appeal against Tribunal's Order The High Court addressed the appeal filed by the revenue against the Tribunal's order, which held that the activities of the assesses, claimed as consignment agents, did not qualify as clearing and forwarding agents. The Tribunal based its decision on a previous judgment by the Larger Bench, emphasizing the distinction between procuring orders and clearing and forwarding operations. Issue 2: Classification of Services The primary issue for consideration was whether the activities conducted by the assesses should be categorized as those of consignment agents, clearing and forwarding agents, or Business Auxiliary Services. The Court admitted CEA 8/2008 to deliberate on substantial questions of law, focusing on the interpretation of the term "clearing and forwarding agent" as defined in Section 65(25) of the Finance Act, 1994. The Court examined whether the respondent's activities fell within the taxable category of clearing and forwarding agents based on the facts of the case. Issue 3: Jurisdiction of High Court The Court deliberated on its jurisdiction to adjudicate the matter under Section 35G, which excludes certain orders from its purview. Citing precedent, the Court clarified that issues falling within the exception of Section 35G, such as those related to excise duty rates or goods' value for assessment, are beyond its jurisdiction. The judgment underscored that the Apex Court holds exclusive jurisdiction to decide such issues, directing the Revenue to pursue the appeal route to the Apex Court. Issue 4: Maintainability of Appeals Ultimately, the Court found the appeals to be not maintainable due to the exclusive jurisdiction of the Apex Court in deciding the question at hand. The judgment rejected the appeals, granting the Revenue the liberty to approach the Apex Court for further proceedings. Additionally, the High Court registry was instructed to return the certified copies of the orders to the Department for appeal filing purposes. This detailed analysis of the judgment highlights the key issues addressed by the High Court in the case, providing a comprehensive overview of the legal considerations and outcomes related to the appeal and classification of services under scrutiny.
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