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2022 (12) TMI 1190 - HC - Central ExciseMaintainability of appeal - appropriate forum - classification of services - rate of tax - appellable before this court or under section 35L of the Excise Act which appeal would need to be filed before the Apex Court - HELD THAT - The Apex Court in the case of NAVIN CHEMICALS MFG. TRADING CO. LTD. VERSUS COLLECTOR OF CUSTOMS 1993 (9) TMI 107 - SUPREME COURT has decided that classification issue is an issue of rate of duty and /or value of goods for the purposes of assessment. The Hon ble Supreme Court having decided that classification issue in Navin Chemicals Manufacturing and Trading Company Limited Vs. Collector of Customs in an issue of rate of duty and for value of goods for the purposes of assessment, the same is binding on us. Therefore, in view of section 35G(1), which specifically prohibits an appeal being entertained by this Court, if it is an order of the Tribunal relating amongst other things to the determination of any question having arisen on account of rate of duty or the value of goods for the purposes of assessment, this Court would not have jurisdiction. This appeal is not maintainable before this court and the course of action available to the appellant is to file an appeal before the Supreme Court under section 35L(1)(b) of the Excise Act - Appeal disposed off.
Issues Involved:
1. Maintainability of the appeal before the High Court under section 35G of the Central Excise Act, 1944. 2. Classification of services rendered by the respondent. 3. Jurisdiction of the High Court in appeals involving questions related to the rate of duty or value of goods for assessment. Issue 1: Maintainability of the Appeal The appeal was filed under section 35G of the Central Excise Act, 1944 against the order passed by the Customs Excise and Service Tax Appellate Tribunal (CESTAT). The respondent raised an issue of maintainability, arguing that the question of law referred to classification, which involves determining the rate of tax, making it appealable under section 35L of the Excise Act before the Supreme Court. The court examined the question raised and concluded that since it involved classification of services, which is related to the rate of duty, the appeal was not maintainable before the High Court but should be filed before the Supreme Court under section 35L(1)(b) of the Excise Act. Issue 2: Classification of Services Rendered The respondent was held liable for service tax under the category of erection commissioning and installation services instead of construction of complex service. The CESTAT allowed the respondent's appeal, leading to the Commissioner filing the present appeal. The questions raised included whether the activity carried out by the assessee should be classified under Works Contract Service. The court noted that classification issues are considered as questions related to the rate of duty or value of goods for assessment, as per the decision in Navin Chemicals Manufacturing and Trading Company Limited Vs. Collector of Customs. Therefore, the court held that the classification issue falls under the jurisdiction of the Supreme Court under section 35L(1)(b) of the Excise Act. Issue 3: Jurisdiction of the High Court The court referred to the statutory provisions of sections 35G and 35L of the Excise Act, which outline the jurisdiction of the High Court and the Supreme Court in appeals related to questions of rate of duty or value of goods for assessment. Citing the decision in Navin Chemicals Manufacturing and Trading Company Limited case, the court emphasized that classification issues are directly related to the rate of duty and value of goods for assessment. Consequently, the court concluded that since the question raised in the appeal involved classification, it was not within the jurisdiction of the High Court but should be appealed before the Supreme Court under section 35L(1)(b) of the Excise Act. In conclusion, the High Court held that the appeal was not maintainable before them due to the classification issue involved, which falls under the jurisdiction of the Supreme Court as per the provisions of the Excise Act. Therefore, the appellant was directed to file an appeal before the Supreme Court under section 35L(1)(b) for further proceedings.
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