2015 (9) TMI 889 - 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.

Issues:
1. Delay in filing the petition.
2. Appeal against the final order passed by CESTAT regarding the service tax on export of services.
3. Preliminary objection on the maintainability of the appeal before the High Court.
4. Interpretation of Sections 35 G and 35 L of the CE Act in relation to service tax appeals.
5. Impact of the decision in Commissioner of Service Tax v. Ernst & Young Private Limited on the present case.

Analysis:

1. The judgment addressed the issue of delay in filing the petition, where a delay of 83 days was condoned for reasons stated, and the application was eventually dismissed.

2. The appeal under Section 35 G of the Central Excises Act, 1944, challenged the final order of CESTAT regarding the service tax on export of services. The key question was whether the export of services provided by the respondent constituted a service exigible to service tax under relevant provisions of the Finance Act, 1994. The CESTAT decision favored the assessee based on precedent, leading to the dismissal of the appeal against it.

3. A preliminary objection was raised regarding the maintainability of the appeal before the High Court, citing the decision in Commissioner of Service Tax v. Ernst & Young Private Limited. The objection questioned whether the appeal fell within the purview of Sections 35 G and 35 L of the CE Act in relation to service tax appeals.

4. The judgment delved 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 CESTAT. The court discussed the applicability of these sections in cases involving the determination of taxability or excisability of goods for assessment purposes, as clarified by subsequent amendments and circulars.

5. Building on the decision in Commissioner of Service Tax v. Ernst & Young Private Limited, the court dismissed the appeal as not maintainable in the High Court. The judgment highlighted the insertion of sub-section (2) in Section 35 (L) of the CE Act to clarify the determination of questions related to the rate of duty, including taxability or excisability of goods. The application was also dismissed in line with the decision on maintainability.

In conclusion, the judgment extensively analyzed the issues of delay, appeal against CESTAT's order on service tax, maintainability objections, interpretation of relevant sections of the CE Act, and the impact of previous decisions on the present case, ultimately leading to the dismissal of the appeal and application.

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