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TMI Blog2018 (9) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the following reframed questions of law, as under for our consideration : (a) Whether in the facts and circumstances of the case, the Tribunal was correct in holding that the activity of providing an earmarked space within the container Freight Station to some customers for the specific purpose of stuffing export Cargo into containers was a Taxable or not covered under the head "Storage and Warehousing Services"? (b) Whether in the facts and circumstances of the case, the legislative intent of not taxing services in relation to export cargo could be frustrated by seeking to tax one of the legs of the transaction of exporting goods, contrary to the statutory intention? (c) Whether in the facts and circumstances of the case, a partial extended period of limitation could have been invoked (from February 2005 onwards) when otherwise the Tribunal dropped penalty proceedings under Section 78 and also concluded that facts had been declared? 4. The appellant is registered under the Finance Act, 1994 and rendering services under the 'cargo handling" service and paying service tax. The appellant has set up a "Container Freight Station" (CFS) at Dronagiri Warehousing Complex, Uran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant that the services rendered by it of storing etc. come under "Cargo Handling" services and not under "Storage and Warehousing" services. Our attention is also drawn to the decision of this Court in Bajaj Auto Lt. Vs. Union of India, 2016 (4) STR 384 where the Court held that the disputes relating to classification of goods would be outside of the jurisdiction of this Court. 8. In response, Mr. Jain, learned Counsel appearing for the appellant strongly contended that the issue arising herein is not one with regard to the appropriate classification of services under the head "Cargo Handling" services or "Storage and Warehousing" services". The issue according to him is that the services rendered at CFS being in nature of export of services, is excludable from the head "Cargo Handling" services. This is evident from the reframed questions proposed. Thus, it is submitted on behalf of the appellant that the issue here is with regard to the taxability of the services rendered at the CFS of storage etc. in respect of goods exported. Our attention was drawn to decision of this Court in the case of Global Vectra Helicorp Ltd. Vs. C.S.T. Mumbai, (CEA No.66 of 2014 decided on 23rd Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue. This submission cannot be accepted in view of the clear language of Section 35G(1) of the Act which says an appeal shall lie to the High Court from every order passed in appeal by the Tribunal on or after the 1st day of July, 2003 except when the order of the Tribunal relates 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. Thus, the jurisdiction to entertain an appeal would depend/ be determined by the nature of the order passed by the Tribunal. The ingenuity of the advocate in framing the question, cannot change the nature/basis of the order of the Tribunal. In fact, whatever the nature of question proposed by the appellant, it is for the Court to formulate the substantial question of law in the context of the order being impugned. Therefore, if the order of the Tribunal is an order relating to a question having relation to the rate of duty or value of goods for the purposes of assessment, the jurisdiction of this Court is barred by virtue of Section 35G of the Act. In fact, the Punjab and Haryana High Court in Principal Commissioner of C.Ex.& S.T. Vs. Raja Dyeing, 2017(5) G.S.T.L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by it to the expression 'rate of duty" or "valuation of goods" for the purposes of assessment. Thus, the Hon'ble Supreme Court in Navin Cheicals Mfg. (supra) has independently come to the conclusion that classification issue would be a "rate of duty" issue. Therefore, in terms of Section 35G(1) of the Act, this Court would have no jurisdiction to entertain such an appeal. In the above facts, reliance upon the decision of the Uttarakhand High Court in the case of Tirupati Lpg Industries Ltd. (supra) does not assist the appellant for it proceeded on the basis that the decision of the Supreme Court in Navin Chemicals Mfg.(supra) would not apply as the foundation of that judgment was a statutory provision which had not been brought into force. This in our respectful view, is not the correct reading of the decision of the Supreme Court in Navin Chemicals Mfg. (supra) wherein, it has specifically stated in paragraph 11 as under : 11. It will be seen that sub-section (5) uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment and the Explanation thereto provides a definition of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case arise for determination. The decision of this Court in Global Vectra Helicorp Ltd. (supra) was rendered in the context of whether a particular service was taxable under the specific entry of the Finance Act, 1994 namely Section 65 (105)(zzzz) of the Act i.e. supply of tangible goods without loss of possession / control of the same or not at all. Thus, the issue was whether the service was rendered or not. If no service is rendered then it is outside the scope of Finance Act, 1994 as existing at the relevant time. Therefore, in the above case, there was no dispute that the issue is one of taxability. Thus, in the above context, the appeal was entertained. In the present facts, the issue is one with regard to classification of the services, rendered at its CFS of keeping and storing of goods by the appellant to MLIL and others between the competing heads viz. "Cargo Handling" services or as "Storage and Warehousing" services. There is no dispute between the parties that service is rendered. In fact, the very bench of this Court which rendered the decision in Globar Vectra Helicorp Ltd. (supra) on 23rd March, 2015 on the very next day in Greatship (India) Ltd. Vs. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Civil Procedure Code by virtue of Section 130F of the Customs Act, 1962 was applicable. In the above view, it is submitted that it would leave an assessee without an appropriate relief as the appellant would not be able to challenge an order in the Supreme Court in case an order of the Tribunal relating to rate of duty or value of goods, if it does not give rise to any substantial question of law nor would the litigant be able to file an appeal to this Court. These are statutory requirement and the Parliament only wanted such appeals to be entertained by the Supreme Court in respect of the issues relating to the rate of duty or valuation of goods for the purposes of assessment which also gives rise to substantial question of law. It is accepted position that the right of appeal is a statutory right and no party has an inherent right to file an appeal (please See - Vijay Mehta v/s. Collection of Customs 1989 (39) ELT 178). It must also gave rise to a substantial question of law before it can be admitted. 16. In the above view, this appeal is not maintainable before this Court and the remedy, if any, to the appellant is to file an appeal before the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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