2011 (4) TMI 1145 - HC - Service Tax

Whether the transfer of technical knowhow or assistance is excisable to service tax which falls within the phrase Rate of duty - Held that - Court has no jurisdiction to go into the same. It is only the Apex Court under Section 35L of the Act which is competent to decide the aforesaid question of law, this appeal is rejected as not maintainable reserving liberty to the revenue to prefer an appeal to the Apex Court

Summary

Issues:
- Appeal challenging Tribunal's order on service tax levy for transfer of technical knowhow
- Whether transfer of technical knowhow falls within the ambit of Consulting Engineer
- Jurisdiction of High Court under Section 35G of the Central Excise Act, 1944

Issue 1:
The appeal was filed by the revenue challenging the Tribunal's order, which upheld the Commissioner of Appeals' decision that the transfer of "Technical knowhow or assistance, technical information" does not fall under the definition of "Consulting Engineers" for service tax levy. The main contention was whether the transfer of technical knowhow or assistance is excisable to service tax within the phrase "Rate of duty."

Issue 2:
The High Court noted that the appeal was preferred under Section 35G of the Central Excise Act, 1944. It was highlighted that the jurisdiction of the High Court under this section is limited, and an appeal lies to the High Court from orders passed by the Appellate Tribunal not relating to the determination of any question related to the rate of duty of excise or the value of goods for assessment purposes.

Issue 3:
The Court concluded that the dispute regarding the classification of the transfer of technical knowhow falls within the ambit of the "rate of duty." Therefore, the High Court held that it did not have jurisdiction to decide on this matter, as only the Apex Court under Section 35L of the Act is competent to address such legal questions. Consequently, the appeal was rejected as not maintainable, with the revenue being granted the liberty to prefer an appeal to the Apex Court. The High Court registry was directed to return the certified copies of the orders to enable the revenue to pursue an appeal at the Apex Court level.

This judgment underscores the importance of understanding the jurisdictional limitations of different courts under specific statutory provisions and the necessity of appealing to the appropriate forum for resolving legal disputes related to taxation and excise matters.