2017 (7) TMI 1226 - HC - Service Tax

Maintainability of appeal - issues concerning rate of duty - Section 35G of the Central Excise Act, 1944 - Held that - The issues sought to be raised herein is as to whether the activity of the Respondent would fall within the definition of consulting engineer for the relevant period. This essentially is a question as to rate, if any, at which duty leviable is to be paid. Such issue is excluded from the purview of the jurisdiction of the High Court in terms of Section 35G of the Act - appeal dismissed being not maintainable.

Summary

Issues:
Maintainability of the appeal before the High Court under Section 35G of the Central Excise Act, 1944.

Analysis:
The Respondent's Counsel questioned the maintainability of the appeal before the High Court, arguing that it does not fall within the scope of Section 35G of the Central Excise Act, 1944. Reference was made to various judgments by different High Courts, such as Commissioner of Service Tax v. DLF Golf Resorts Ltd., Commissioner of Service Tax v. Gecas Services India Pvt. Ltd., Commissioner of Service Tax v. Ernst & Young Pvt. Ltd., and Commissioner of Central Excise, Salem v. Thriveni Earth Movers Pvt. Ltd. The Counsel also highlighted the provisions of Section 35L of the Act to support the argument that the issues raised in the appeal should be under the jurisdiction of the Supreme Court.

The Appellant-Department's Counsel referred to judgments like Commissioner of S.T., Bangalore v. Scott Wilson Kirkpatric (I) Pvt. Ltd., CCE, Mangalore v. Mangalore Refineries & Petrochemicals Ltd., and Commissioner of Central Excise & Customs v. Swiss Glass Coat Equipments Ltd. The Counsel emphasized that the question of whether the activity of the Respondent falls within the definition of a "consulting engineer" for the relevant period is essentially a question related to the rate at which duty is leviable, which falls outside the purview of the High Court's jurisdiction as per Section 35G of the Act.

The Court, after considering the arguments presented, held that the appeal is not maintainable before the High Court under Section 35G of the Act and dismissed it without prejudice to the other remedies available to the Appellant-Department. This decision was based on the understanding that the issue raised in the appeal pertains to the determination of the rate of duty of excise, which is excluded from the High Court's jurisdiction as per the provisions of the Act.

This comprehensive analysis of the judgment highlights the key arguments presented by both parties regarding the maintainability of the appeal before the High Court under Section 35G of the Central Excise Act, 1944. The Court's decision to dismiss the appeal based on the exclusion of the issue from the High Court's jurisdiction provides a clear understanding of the legal reasoning behind the judgment.