2015 (9) TMI 888 - HC - Service Tax

Maintainability of appeal - Held that - Whether the export of services provided by the Respondent constituted a service and was exigible to service tax under Section 73(1) read with Section 66 and 68 of the Finance Act, 1994 read with Rules 6 of the Service Tax Rules 1994 - Held that - Section 83 of the Finance Act 1994, makes the provisions of Sections 35 G and 35 L of the CE Act ipso facto applicable in relation to service tax. Section 35 G concerns appeals to the High Court from orders of the CESTAT whereas Section 35 L deals with appeals to the Supreme Court from orders of the CESTAT. Section 35 L (b) provides that appeals from orders of CESTAT would lie directly to the Supreme Court where it involves the 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. In Ernst & Young this 2014 (2) TMI 1133 - DELHI HIGH COURT Court held that any question having relation to a rate of duty would include a determination as levy of tax on a particular service. It was held that The words rate of tax in relation to rate of tax would include the question whether or not the activity is exigible to tax under a particular or specific provision. Accordingly, it was held that an appeal under Section 35-G of the CE Act against the order of the CESTAT on the question of exigibility of a service to tax was not maintainable before this Court. - Decided aagainst Revenue.

Summary

Issues:
1. Delay in filing petitions
2. Maintainability of appeals before the High Court
3. Interpretation of Sections 35 G and 35 L of the CE Act
4. Exigibility of service tax on export of services

Analysis:
1. The judgment begins by condoning the delay in filing the petitions and subsequently disposing of the applications related to the delay.

2. The main issue in the appeals was whether the export of services provided by the Assessees constituted a "service" and was liable to service tax under specific sections of the Finance Act, 1994. The CESTAT had ruled in favor of the Assessees based on a previous decision. However, a preliminary objection on the maintainability of the appeals was raised by the Respondents, citing a previous judgment in Commissioner of Service Tax v. Ernst & Young Private Limited.

3. The judgment delves into the interpretation of Sections 35 G and 35 L of the CE Act concerning appeals to the High Court and the Supreme Court from orders of the CESTAT. It highlights the significance of these sections in determining the maintainability of appeals related to the levy of tax on a particular service. The decision in Ernst & Young was pivotal in establishing that appeals on the question of exigibility of a service to tax were not maintainable before the High Court.

4. Following the decision in Ernst & Young, a clarification was made through an amendment to Section 35 (L) of the CE Act, explicitly stating that the determination of any question related to the rate of duty includes the determination of taxability or excisability of goods for assessment purposes. A circular issued by the Tax Research Unit further clarified this position.

5. Ultimately, the appeals in question were dismissed as not maintainable in the High Court based on the interpretation of relevant provisions and precedents. The applications were also dismissed accordingly, bringing the matter to a close based on the legal analysis presented in the judgment.