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2022 (12) TMI 1194 - HC - Service TaxMaintainability of appeal - appropriate forum - classification of services - Business Auxiliary services or not - HELD THAT - The issue, therefore, that arises for consideration is essentially within the realm of valuation of services rendered by the respondent in booking Cargo on a commission basis under the head Business Auxiliary Services . The issue is thus of valuation and the remedy in terms of Section 83 of the Finance Act, 1944 read with Section 35 (G)(1) and Section 35 (L)(1)(b) of the Act, would not lie before this Court, but would be by way of an appeal before the Hon ble Supreme court. We are fortified, in taking this view by a judgment of this Court rendered in THE COMMISSIONER OF SERVICE TAX, MUMBAI VII, MUMBAI VERSUS M/S. GREENWICH MERIDIAN LOGISTICS (I) PVT. LTD. 2018 (9) TMI 1893 - BOMBAY HIGH COURT which holds that the remedy in a matter concerning the issue of valuation is by way of filing an appeal in terms of the above provisions of law before the Hon ble Supreme Court. The appeal before us is therefore not maintainable. The appeal is dismissed for want of maintainability.
Issues:
1. Appeal challenging CESTAT order regarding Business Auxiliary Service (BAS) provision. 2. Reframed substantial questions of law presented by the appellant. 3. Interpretation of the respondent's services falling under Business Auxiliary Service. 4. Tribunal's decision on additional consideration received by the respondent. 5. Valuation of services rendered by the respondent and jurisdiction for appeal. Analysis: 1. The appeal under section 83 of the Finance Act, 1994 challenges the CESTAT order partly allowing the appeal of the respondents, disputing that the appellant was not providing any service as a Business Auxiliary Service (BAS). The Tribunal set aside the original orders passed by the Commissioner, leading to the issue of the appellant's service provision. 2. The appellant's counsel presented reframed substantial questions of law for consideration, including the appellant's status as a multi modal transport agency, the correctness of CESTAT's decision, and the setting aside of demands and penalties on grounds of limitation. These questions aimed to address the legal aspects of the case. 3. The respondent, registered under the Finance Act, 1994, offers various taxable services, including Business Auxiliary Service. The core issue revolved around whether the premium charged by the respondent to customers for pre-booked cargo space constituted an additional consideration for services rendered under Business Auxiliary Service, as defined by the Act. 4. The Tribunal concluded that the additional consideration received by the respondent was not in the nature of providing services to shipping lines or customers, thus not falling under Business Auxiliary Service. This decision was influenced by a previous judgment by the Tribunal on similar facts, establishing a precedent in such cases. 5. The judgment highlighted the jurisdictional aspect of the appeal, emphasizing that the issue primarily pertained to the valuation of services provided by the respondent under Business Auxiliary Services. It was clarified that the remedy for such matters lies in filing an appeal before the Hon'ble Supreme Court, as per the relevant provisions of the law. Citing a previous judgment, the Court deemed the current appeal as not maintainable due to jurisdictional constraints, leading to the dismissal of the appeal.
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