2023 (11) TMI 105 - HC - Service Tax

Appropriate Forum - High Court or Supreme Court - Scope of Negative List services - Business Support Service cover the activity done by assessee as per Section 65(104c) of the Finance Act, 1994 or not - agreement create the relationship of employer employee or not - HELD THAT - By virtue of section 83 of the Finance Act, 1994 all the appeal to the High Court from order of CESTAT were to be filed under Section 35G of the Central Excise Act, 1944. Section 35G of the Central Excise Act, 1944, provides that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of 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 purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law - under the Central Excise Act, any question relating to rate of duty of excise or to the value of goods, or its classification, the appeal regarding same was only maintainable before the Hon ble Supreme Court under section 35 L of the Central Excise Act. The rationale behind same is to maintain uniformity in the rate of duty as well as classification of the items across the country. For the purposes of the Service Tax Act, same rationale is not applicable as the rate of duty is uniform and further there is no classification of services. The only classification of service is whether they fall under the negative list or not. In the present case there is no question concerning determination of any question having a relation to the rate of duty or to the value of goods. Rate of duty is fixed, there is also no dispute as to the value. Reliance placed in the case of COMMISSIONER OF CE AND CGST BHAVNAGAR VERSUS KRISHNA CONSTRUCTIONS 2023 (10) TMI 64 - GUJARAT HIGH COURT where it was held that Reading the question of law framed indicates that the issue under consideration is as to whether the assessee was eligible for exception / exemption under Notification No. 25 of 2012. The exemption if denied, would require adjudication on rate of duty and therefore the appeal would fall under the caption 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 purposes of assessment . Thus, tax appeal is not maintainable.

Summary

Issues Involved:
1. Whether the activity done by the assessee falls under "Business Support Service" as per Section 65(104c) of the Finance Act, 1994.
2. Whether the agreement creates an "employer-employee" relationship.

Summary:

Issue 1: Classification under "Business Support Service"
The court examined whether the activity performed by the assessee was covered under "Business Support Service" as defined in Section 65(104c) of the Finance Act, 1994. The Tribunal had concluded that the activity did not fall under this category. The court noted that the service tax regime had evolved from a Positive List to a Negative List system post-2012, where all services were taxable unless specified otherwise in the Negative List. The court emphasized that the classification of services was no longer relevant under the Negative List regime, and the only consideration was whether the service was included in the Negative List. The court referenced previous judgments to assert that disputes concerning the classification of services fall under the jurisdiction of the Supreme Court, not the High Court, as per Section 35L of the Central Excise Act.

Issue 2: Employer-Employee Relationship
The second issue was whether the agreement between the assessee and the other party established an "employer-employee" relationship. The Tribunal had concluded that the agreement did create such a relationship. The court reviewed the relevant legal provisions and precedents, noting that the determination of whether an activity is a service or falls under a specific category of taxable service directly relates to the rate of duty. The court reiterated that such matters should be adjudicated by the Supreme Court, not the High Court, to maintain uniformity in the interpretation of tax laws.

Conclusion:
The court concluded that the appeal was not maintainable under Section 35G of the Central Excise Act, 1944, as it involved substantial questions related to the rate of duty and classification of services, which fall under the jurisdiction of the Supreme Court. Consequently, the appeal was dismissed.