2018 (9) TMI 87 - HC - Service Tax

Maintainability of appeal - Section 35G of the Central Excise Act, 1944 - Whether the particular transaction or the activity carried on by the respondent-dealer would result in a service to MIBL and MFL, and as a consequence, would be covered under the Finance Act, 1994 as a business auxiliary service? - Held that - Section 35G provides for an appeal to the High Court from every order passed by the Appellate Tribunal on or after the 1st July 2003; 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 the purposes of assessment. The issue would have to be agitated before the Honorable Supreme Court under Section 35L - The appeals are, hence, dismissed as not maintainable reserving the right of the Department to agitate their cause under Section 35L.

Summary

Issues involved: Appeal maintainability under Section 35G of the Central Excise Act, 1944; Classification of the transaction as a service under the Finance Act, 1994.

Analysis:

1. Appeal Maintainability under Section 35G: The main contention raised was regarding the maintainability of the appeal under Section 35G of the Central Excise Act, 1944. The respondent-dealer argued that since the issue pertained to classification, there could be no appeal before the High Court, and it should be challenged before the Supreme Court under Section 35L of the Act. The respondent also mentioned the withdrawal of exceptions in the litigation policy for classification and refund issues. However, an instruction produced by the Standing Counsel for the Government of India stated that issues involving substantial questions of law would be contested irrespective of monetary limits. The court held that the second ground raised by the assessee did not survive, and the appeal was not maintainable under Section 35G as it did not relate to the rate of duty or the value of goods for assessment under the Finance Act, 1994.

2. Classification of Transaction as a Service: The case involved a dealer of motor vehicles facilitating insurance and finance services to consumers through subsidiary companies of Maruti Udyog Limited. The dealer received commissions from these subsidiaries for the services provided. The court analyzed whether the activities of the dealer constituted business auxiliary services under the Finance Act, 1994. The dealer contended that they did not carry out any service under the Act. The court referred to a previous judgment and highlighted the distinction between the jurisdiction of High Courts and the Supreme Court in deciding issues related to coverage, rates, and value of goods. It was concluded that the question of whether the dealer's activities fell within the definition of service under the Finance Act, 1994 should be agitated before the Supreme Court under Section 35L, as per the binding decision of the Division Bench. Consequently, the appeals were dismissed as not maintainable, allowing the Department to pursue their cause under Section 35L.

In summary, the judgment addressed the appeal's maintainability under Section 35G and the classification of the dealer's activities as services under the Finance Act, 1994. The court clarified the jurisdictional aspects and upheld the decision that the appeal was not maintainable under Section 35G due to the nature of the issue. It was determined that the question of whether the dealer's activities constituted a service under the Act should be raised before the Supreme Court under Section 35L, following the precedent set by the Division Bench.