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TMI Blog2023 (8) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier agreement) whereunder, the appellant had awarded media rights to one MSM Satellite (Singapore) Pte. Ltd. and World Sport Group (India) Pvt. Ltd. which were sought to be taxed by levy of service tax. 2. The appellant was issued show cause notices for the relevant periods being F.Y. 2007-08, F.Y. 2008-09, F.Y. 2010-11 and F.Y. 2011-12, classifying the assessee as a 'Franchisee' within the meaning of Section 65 (47) of Chapter V of the Finance Act, 1994 in relation to services rendered by it to MSM Satelite (Singapore) which were in respect of telecast of Indian Premier League (IPL) Cricket matches, being played on the Indian soil. 3. It is seen from the record that the issue before the Tribunal was in regard to the taxability of the said services, as the appellant had taken a specific plea in regard to the non-taxability of the said services, inter alia, contending that such services and subject matter of such agreements, as sought to be taxed, were transactions of "export of service," falling within the purview of Export of Services Rules, 2005, including the applicability of an amendment as brought about to Rule 3 (1) of the said Rules by Export of Services (Amendment) Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the question which arises for determination is the one falling under the provisions of sub-section (2) of Section 35L would mandate. 6. The provisions of Section 35G and Section 35L of the 1944 Act which are made applicable to the Finance Act, 1994 in relation to the levy of Service Tax referring to which, such objection is raised on behalf of the Revenue are required to be noted which reads thus : - Section 35G. Appeal, to High Court.- (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after 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 the purposes of assessment) if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) An appeal shall lie to the Supreme Court from - a) any judgment of the High Court delivered - (i) in an appeal made under section 35G; or (ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under section 35H, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal 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. (2) For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment." (Emphasis supplied) 7. We may observe that sub-section (2) of Section 35L, itself clarifies that for the purpose of Chapter VI-A, the determination of any question having a relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5L and the law in such context, answered the issue in terms of what has been held in paragraph 9 of the said judgment, which reads thus: "9. In view of our above discussion, we now answer the questions posed in the reference for our opinion as under: a) Regarding question (a) - Appeals from orders of the Tribunal relating to taxability or excisability passed prior to 6th August, 2014, i.e., the date of insertion of sub-section (2) to Section 35L of the Act, being a rate of duty issue would be appealable only to the Hon'ble Supreme Court and not the High Court. b) Regarding question (b) - The amendment made to Section 35L of the Act is clarificatory in nature and, therefore, retrospective in operation." 14. Similar view was taken by this Court in the case of M/s. Surindra Engineering Co. Ltd. (supra) as also in the case of M/s. Phoenix International Freight Service Pvt. Ltd. (supra)." 9. As noted above, the case of the appellant is on the issue that services in question are not taxable as 'Franchisee', as the appellant is undertaking export of services. In other words, the issue is, as to whether in relation to services in question, any tax can at all be levied under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the High Court under Section 35G of the Central Excise Act. Therefore, the High Court has committed a very serious error in not entertaining the appeals and relegating the Revenue to prefer the appeals before this Court. As the High Court has not considered the appeals on merits and/or on any other question, we have no other alternative but to remand the matter to the High Court to decide the appeals in accordance with law and on its own merits. 10. In view of the above, and for the reasons stated above, all these appeals succeed in part. The impugned common judgment and order passed by the High Court in not entertaining the appeals and relegating the Revenue to prefer appeals before this Court under Section 35L of the Customs Excise Act is hereby quashed and set aside. The matters are remanded to the High Court to entertain the appeals under Section 35G of the Customs Excise Act and thereafter to consider the same in accordance with law and on its own merits." 12. Mr. Mishra, learned counsel on behalf of the revenue has also drawn our attention to an order passed by the Supreme Court in case of Infosys Vs. Commissioner 2015 (37) STR 862 wherein the Supreme Court had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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