2020 (4) TMI 809 - HC - Service Tax

Maintainability of appeal - appropriate forum - issue relates to taxability or excisability of goods - primary objection taken by the Revenue is that this case would not be covered under Section 35G of the Central Excise Act, 1944 but under Section 35L of the Act - HELD THAT - From Section 35L(1) (b) of the Act it is evident that the appeal shall lie to the Supreme Court on the question in relation to rate of duty of excise or value of goods. Sub-Section(2) of Section 35L of the Act clarifies that the rate of duty shall include the determination of taxability or excisability of goods - In the present case, the issue involved is as to whether the activity of the appellant falls within the definition of Section 65 (19) of the Finance Act, 1994 and thereby whether the cost of activity would form part and parcel of the charge levied by the Revenue. The case would be covered by Section 35L of the Act because taxability depends on whether the activity carried out by the Assessee is a business auxiliary service or not - appeal dismissed as not maintainable.

Summary

Issues:
1. Jurisdiction of the appeal under Section 35G or Section 35L of the Central Excise Act, 1944.
2. Determination of taxability or excisability of goods under Section 35L.
3. Applicability of the judgment in a similar case.

Jurisdiction under Section 35G or Section 35L:
The judgment dealt with the appeal against the Tribunal's order on the tax liability of the Assessee. The Revenue contended that the case should be under Section 35L, not Section 35G, as it pertains to taxability or excisability of goods. Section 35G allows appeals to the High Court on substantial questions of law, while Section 35L pertains to appeals to the Supreme Court on issues related to the rate of duty or value of goods. The court analyzed the provisions of both sections and concluded that the case falls under Section 35L due to the nature of the activity carried out by the Assessee.

Determination of Taxability or Excisability of Goods:
The primary issue in the case was whether the Assessee's activity falls within the definition of a business auxiliary service under Section 65(19) of the Finance Act, 1994. The court opined that the determination of taxability depends on whether the activity is classified as a business auxiliary service. The judgment emphasized that the appeal would be covered by Section 35L of the Act, which includes issues related to the determination of taxability or excisability of goods.

Applicability of Previous Judgment:
The appellant argued that besides taxability and value of goods, other issues were involved in the case. However, the court referred to a previous judgment where it was held that if the issue falls under Section 35L, the appeal would lie to the Supreme Court. Therefore, the court dismissed the appeal as not maintainable under Section 35G and held that the pending application stands disposed of. The judgment provided clarity on the jurisdiction of appeals concerning taxability and excisability of goods under the Central Excise Act, 1944.