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TMI Blog2023 (10) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court? 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 . Essentially even if it is the contention of the appellant that from the year 2012, a negative list of services was prescribed and therefore there is no classification of service left open, the case of Saumya Construction Pvt. Ltd. [ 2014 (12) TMI 127 - GUJARAT HIGH COURT] where it was held that As can be seen on a combined reading of Section 35G and Section 35L of the Act, if the order of the Tribunal relates to determination of the rate of duty, the appeal would lie before the Supreme Court and not before the High Court. Even the Karnataka High Court in the case of Scott Wilson [ 2011 (4) TMI 500 - KARNATAKA HIGH COURT] held that it is clear that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly for use other than for commerce, industry, or any other business or profession and Railway Tracks is neither a civil structure nor it can be classified as any other original works ? (d) Whether in the facts and circumstances of the case, the Ld. Tribunal erred in holding that the Cleaning of Station services is covered under Maintenance of Railway Station and the same is eligible for exemption under the Sr. No. 12 of Notification No. 25/2012-ST.? (e) Whether in the facts and circumstances of the case, the Ld. Tribunal erred in holding that W R Grinding FB Welding services falls under the category of Repairs and Maintenance of Railway Tracks as a original work and eligible for exemption under Sr. No. 12 of Notification No. 25/2012-ST especially in view of the fact that the said activity is neither carried out for a civil structure or any other original works? (f) Whether in the facts and circumstances of the case, the Ld. Tribunal erred in holding in adjudicating upon fresh and new argument of the Respondent claiming exemption under Sr. No. 12 (a) of Notification No. 25/2012-ST dated 20.06.2012., which was never pleaded before in the original proceedings in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Customs; 1993 (68) ELT 3 (S.C.) 3.2 Mr. Shah would therefore submit that the Exemption Notification, if denied, consequently, the duty liability under a different head of the services would arise, and the assessee would be subjected to the tax assessment at the rate prescribed under the law. Therefore, the Appeals 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 . 3.3 Mr. Shah would further submit that the arguments raised by the appellant that Section 66D of the Finance Act, 1994 was inserted from the year 2012, whereby a negative list of services was prescribed, and therefore, there is no classification of services left open, post-2012. It was also contended that there was a uniform rate of tax post-2012, and therefore, there is no question of issue pertaining to the rate of duty. 3.4 Mr. Shah would submit that the interpretation advanced by the appellant is farfetched and contrary to the settled law laid down by our High Court in a number of judgments, which are referred to herein above. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment of India, on the above subject matter. For all taxable services, there was only one accounting code, as opposed to various accounting codes for different services in the positive list regime. 4.4 That, as per Section 66B of the Finance Act, 1994, with effect from 1/7/2012, the rate of the tax was uniform. Rate changed from year to year, but uniformly applicable for all services. 4.5 Hence, what transpires is that there was a uniformity in rate of tax, and all the services were to be classified as taxable or not. Services which came under negative list were not taxable, all the other services were taxable at uniform rate. 4.6 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Service Tax (Determination of Value) Rules, 2006, the stand of the assessee was negated. 7. On appeal to CESTAT, the Tribunal apart from merits, on the question of exemption held as under: 5.4 We also find that impugned O-I-O dated 02-03-2022 has not appreciated facts that Appellant has provided services only to Government i.e. to Railways, which has exemption under Mega Exemption Notification No. 25/2012-ST dt. 20-12-2012 [Sr. No. 12]. The adjudicating authority has confirmed the demand of Service Tax for FY 2014-15 to 2016-17 as shown in above para. The O-I-O dated 02-03-2022 has confirmed the demand only on finding that the above services were not related to Original Works . Appellant has given detailed clarification for the said services in Appeal and submitted that they are eligible for exemption under Sr. No. 12 of the said Exemption Notification No. 25/2012-ST. Therefore the relevant Sr. No. 12 of the said Notification No. 25/2012-ST dated 20-62012, which has provided such exemption has been reproduced as under :- 12. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coverable from Appellant. (ii) WR P Way maintenance Labour :- The adjudicating authority has confirmed Service Tax demand for Rs. 1,53,00,790/- on total amount of Rs. 10,68,63,588/-, which has been shown in their Profit Loss A/c. The adjudicating authority has given findings in O-I-O dt. 02-03-2022 with reference to work orders that the activity of Appellant is permanent way maintenance, under which they have to inspect railway tracks and have to perform normal routine maintenance of Railway Tracks. Amounts received for service are shown in Profit Loss account. O-I-O dt. 02-03- 2022 has noted that work orders are for yearly maintenance of Railway Tracks. The scope of work is to inspect Railway track and to perform normal routine maintenance work on existing rails/tracks viz removing, fastening, lubrication of ERC, Cleaning of grass, over hauling of LCs, carting of rails. Adjudicating Authority has denied exemption as it is not related to Original work of construction, erection, commissioning, or installation pertaining to the Railways. Appellant has submitted that they are eligible for exemption under the Sr. No. 12 of the said Notification No. 25/2012-ST which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 334/4/06-TRU dt. 28-022006 which is eligible for exemption under the Sr. No. 12 of Notification No. 25/2012-ST. Accordingly, demand of Service Tax on amount of Rs. 2,47,171/-, attracting total amount of Service Tax Rs. 30,530/- deserves to be set aside and we do so. (iv) W R Grinding FB welding :- The adjudicating authority has confirmed Service Tax of Rs. 2,21,184/- @ 12.36 % on the amount of Rs. 17,89,512/-, which is shown as Grinding FB Welding Income in Profit Loss accounts for FY 2014-15. As per impugned O-I-O, Appellant have only provided the service of Grinding of Flash Butt (Electric Resistance) Welding service to Western Railway under which Appellant carried out work of Grinding of rails on a flash butt welding, programmed welding sequence for welding of the rail joints during the F.Y. 2014-15 and the total amount of Rs. 17,89,512/- has been received for it which is shown as WR Grinding FB is welding . There is no detailed discussion in O-I-O regarding nature of process undertaken and nature of welding carried out on Rails/Railway Tracks. This Activity in our view is only Repairs Maintenance. The work was carried out as per Tender floated on 25-04-2012 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5G read with Section 35L of the Central Excise Act, 1944, the appeal would lie before the Supreme Court and not before this court. In support of such submission, the learned counsel placed reliance upon the decision of this Court in the case of Commissioner of Central Excise v. JBF Industries Limited 2011 (264) E.L.T. 162 (Guj), wherein this court has held that the question as regards the applicability of a notification or a circular, which has a direct bearing on the rate of duty is a question which has a direct and proximate relationship to the rate of duty and value of the goods for the purposes of assessment. It was submitted that the above decision would be squarely applicable to the facts of the present case, under the circumstances, these appeals are not maintainable before this Court. 4. Mr R.J. Oza, learned senior standing counsel for the appellant is not able to dispute the above position of law. 5. A perusal of the impugned order of the Tribunal clearly shows that the dispute involved in the present case relates to the applicability of Notification No. 14/2002-C.E., dated 1-3-2002 which has a direct bearing on the determination of the rate of duty for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the expression determination of rate of duty of excise or the value of the goods for the purposes of assessment of duty used in Section 35G(1) and Section 35L(b) of the Act. We are in agreement with the view taken by the Andhra Pradesh High Court. In the circumstances, the present appeal which raises a question as to whether re-glass lining of old vessels amounts to manufacture or not, involves determination of a question relating to the rate of duty of excise or value of goods for the purposes of assessment, would lie before the Supreme Court and not before this Court. 11. The Division Bench of this Court in the case of Reliance Industries Ltd. (supra) held as under: 6. We have heard learned Counsel appearing for the respective parties. We have noticed that in the decision rendered by Hon'ble Supreme Court in the case of Navin Chemicals MFG Trading Co. Ltd. (supra), the Hon'ble Supreme Court while deciding the appeal in relation to classification of goods and as to whether or not they are covered by exemption notification directly and proximately to the rate of duty, held as under: 11. It will be seen that sub-section (5) uses the said express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question whether the process, if any, undertaken in the service centre of the assessee amounts to manufacture of stators by assessee or not, and if the goods produced in that process are excisable goods or not would fall within the meaning of expression 'determination of rate of duty of excise or the value of the goods for the purposes of assessment of duty' used in section 35G[1] and section 35L[b] of the Central Excise Act. Learned advocate submitted that in view of the ratio laid down by the Andhra Pradesh High Court in the above judgment, the appeal is not maintainable. 4. We have heard Ms. Naynaben Gadhvi, learned Standing Counsel appearing on behalf of the appellant and Mr. Dhaval Shah, learned advocate appearing on behalf of the respondent, at length and in great detail. We have also considered the reasons assigned by the Tribunal. The appellant is a manufacturer of glasslined vessels. It also re-glasslines old glasslined equipments by following the procedure under Rule 173H of the Central Excise Rules, 1944 as it existed at the material point of time. Such glasslined vessels were cleared by it on payment of duty on the value of components used and rectified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved, we called upon the learned Counsel appearing on behalf of the appellant to satisfy how the present Tax Appeals before this Court would be maintainable. To the aforesaid, the learned Counsel appearing on behalf of the appellant is not in a position to dispute that the identical questions came to be considered by the Division Bench of this Court in Tax Appeal No. 973/2011, more particularly, with respect to maintainability of the appeal before this Court involving the similar issues raised in the present Tax Appeals and the Division Bench has dismissed the appeal as not maintainable, as for the issues involved in the Tax Appeals, appeal before Hon'ble the Supreme Court under section 35L of the Central Excise Act would be maintainable. 3. Having heard Shri R.J. Oza, learned Counsel appearing on behalf of the appellant and the proposed substantial questions of law referred to hereinabove and the controversy and the issues involved in the present Tax Appeals, we are of the view that the present Tax Appeals before this Court filed under section 35G of the Central Excise Act would not be maintainable and the questions involved can only be decided by Hon'ble the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Supreme Court of India. Even before the said amendment in law took place, the Division Bench of Karnataka High Court in two decisions dealing with both the enactments viz., Excise Law and Customs Law made such observations and held that such appeals are maintainable before the Hon'ble Supreme Court of India. 10. As against that, in the decisions relied upon by learned Standing Counsel Mr. Nikunt Raval in the case of Honda Siel Power Products Ltd. (supra), Hon'ble Madras High Court has held as under: 10. ... Thus Section 35G of the Act does not exclude the power of the High Court to entertain an appeal against an order passed by the Appellate Tribunal on the question of manufacture. The basic question involved in the present appeal as also contested by the parties from the initial stage is whether the activity of the assessee with respect to the goods in question cleared by them is manufacture? Thus, we do not find any substance in the first preliminary objection raised by the respondent assessee as the maintainability of the appeal before the High Court under section 35G of the Act and accordingly, the said preliminary objection is rejected. We hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The Delhi High Court in the case of Ernst Young Pvt. Ltd. Ors. (supra) held as under: 8. We have given due consideration to the contention raised but, after due deliberation do not think that the Delhi Gymkhana Club Ltd. (supra) requires reconsideration and reference to a Larger Bench. At this stage, we would notice and reject the contention of the appellant Revenue that the issue raised in Delhi Gymkhana Club Ltd. (supra) was relating to rate of tax and not chargeability or very levy of tax. The contesting respondents have produced before us, the appeal paper book and pointed out that the issue raised was whether the said club when offering services to members etc. would fall under the definition of Mandap Keeper under Section 65(90) of the F. Act. The contention of the club was that on the principle of mutuality of interest between the club and the members, the activities were not chargeable or exigible to tax as a mandap keeper. In the said case, the issue or contention whether there were two or more provisions under which the said service would be taxable did not arise for consideration and issue of rate of tax or valuation of taxable service was not a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order which is impugned in the appeal which determines the issue. 10. This brings us to the decision of the Supreme Court in Naveen Chemicals manufacturing Tading Co. (supra). In the said case, the assessee had filed an appeal before the Supreme Court against the order of the appellate tribunal. The original adjudication order had directed confiscation under Section 111(d) of the Customs Act, 1962 read with Section 5 of the Imports Export (Control) Act, 1947 (IEC Act, for short) but had given option under Section 125 of the said Act to the assessee to pay fine of Rs. 10,000/- in lieu of confiscation. The contention of the assessee was that the order of the Customs, Excise and Gold (Control) Appellate Tribunal affirming the direction in the original adjudication order was invalid as it was passed by a single member Bench whereas the appeal should have been heard by a Division Bench of the appellate tribunal. The Supreme Court interpreted Section 129C of the Customs Act, which was as under: 129-C. Procedure of Appellate Tribunal (1) The powers and functions of Appellate Tribunal may be exercised and discharged by Benches constituted by the President from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Collector's order did was to confiscate the said goods allowing to the appellant the option of redeeming them upon payment of fine of Rs. 10,000/-. That the appellant might avail of the option, pay the fine and clear the said goods, when questions as to the rate of duty and value for purposes of assessment might possibly arise, is far too remote a contingency to satisfy the test that is laid down. 12. Submission of the Revenue is that the said judgment refers to sub-section (5) to Section 129D which was added by Customs Central Excise Laws Amendment Act, 1988. It is submitted that the sub-section had influenced the ratio and finding of the Supreme Court as explanation to the said Section for the purpose of Section 129D had by deeming fiction defined the expression rate of duty . It was submitted that provisions of Customs Act are not applicable to F. Act. 13. In fact sub-section (5) to Section 129D was never enforced and stands deleted from the said statute by Act 25 of 2004 w.e.f. 21st December, 2004. Explanation to Section 129D was as under: Explanation ; For the purposes of this subsection, the determination of a rate of duty in relation to any good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all for and examine any record of any adjudicating authority subordinate to him and pass orders; or to apply to Collector (Appeals) for determination of such points. The said provision as noticed was inserted by Customs and Central Excise Laws (Amendment) Act, 1988, but was never enforced. Explanation to sub-section (5) to Section 34E and sub-section (5) to Section 129D were made in the context of Customs, Excise and Revenue Tribunal Act, 1986 which provided for appeals to the new tribunal in relation to matters relating to rate of tax and valuation instead of the appellate tribunal i.e. CEGAT. 16. Another contention raised on behalf of the Revenue is that Section 66 is a charging Section but also stipulates the rate of tax. Thus question of rate of tax does not arise in service tax. The contention in fact supports the stand of the contesting respondent assessees as chargeability, valuation and rate of tax are interconnected. 17. Reference was made by the counsel for the Revenue to paragraph 11 in the judgment in the case of Naveen Chemicals Manufacturing (supra) which reads as under:- 11. It will be seen that Sub-section 5 uses the said expression 'determinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of present controversy, we are inclined to ignore and not take into consideration explanation 5 to Section 129D or sub-section 5 to Section 35E. However, inspite of the said position, we do not think that the decision in the case of Delhi Gymkhana Club Ltd. (supra) is required to be referred to a Larger Bench. Determination of any question relating to rate of tax would necessarily directly and proximately involve the question, whether activity falls within the charging Section and service tax is leviable on the said activity. The said determination is integral and an important injunct to the question of rate of tax. In case service tax is not to be levied or imposed and cannot be imposed under the charging Section, no tax would be payable. The said determination would be direct or proximate to the issue of rate of tax, which will include nil tax, when no tax is chargeable. 19. If the reasoning given by the Revenue isto be accepted, it will lead to anomaly and substantial confusion. All assessments necessarily have to determine and decide the rate of tax after determining and deciding whether or not activity is chargeable or tax can be levied. Assessments against the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat whether the process undertaken by a manufacturer amounts to manufacture or not, and if the goods produced during the process are excisable or not, would fall within the meaning of expression determination of the rate of duty of excise or the value of the goods for purposes of assessment of duty . 13. In C.C.E., C. S.T., Thiruvananthapuram v. Kerala State Beverages, the Kerala High Court held thus : 4. The ratio of the precedents cited in support of the objection as to maintainability is that the question as to whether any goods are excisable or not, would also fall within the exclusion in terms of sub-section (1) of Section 35G and that the bifurcation of jurisdiction between the Supreme Court and the High Courts seems to be clearly intended, also to exclude conflict of opinions between the different High Courts on matters which relate to issues having national impact in the fiscal scenario. We see abundant substance and support for this view in the manner in which the provisions of Section 35G relating to exclusion of jurisdiction of the High Court need to be understood. Section 35G(1) provides, among other things, that an appeal shall lie to the High Court fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vis- -vis questions relating to the coverage itself. We do not see that the Act envisages that the High Courts would have the power of such nature that they decide the question of coverage; leaving to the Supreme Court only issues relating to the rates, sans the issue of coverage. We say this in furtherance of the reasoning that led to the precedents cited on behalf of the respondent. 14. In Commissioner of Central Excise v. JBF Industries Ltd. (supra), this court has held that the question as to the applicability of a notification or a circular which has a bearing on the determination of duty is a question which has a direct and proximate relationship to the rate of duty and to the value of goods for the purposes of assessment. In Union of India v. Guwahati Carbon Ltd. (supra), the Supreme Court held that when a Revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy in a particular forum, in a particular way, it must be sought in that forum in that manner and all other forums and modes of seeking remedy are excluded. It was further held that the excise law is a complete code in order to seek redress in excise matters and hence, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Service Tax payable on any service/taxable service. (b) The value of the taxable service for the purposes of assessment. (c) A dispute as to the classification of services. (d) Whether those services are covered by an exemption notification or not? (e) Whether the value of services for the purposes of assessment is required to be increased or decreased? (f) The question of whether any services are taxable services or not? (g) Whether an activity is a service rendering activity or not, so as to attract levy of Service Tax? (h)Whether a particular service falls within which heading, sub-heading of Section 65(105) of the [Finance] Act, 1994 which defines taxable Service . The court held that an order passed by the Appellate Tribunal relating to the determination of any question having relation to the rate of Service Taxes or to the value of service for the purposes of assessment lies to the Supreme Court under Section 35L(b) of the Act and not to the High Court under Section 35G of the Act. The Court further observed as follows : 38. The intention behind this bifurcation of jurisdiction between the Apex Court and the High Court s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in relation to Service Tax as they apply in relation to duty of excise. 18. It is in the light of the provisions of Section 83 of the Finance Act, 1994 that an appeal lies to the High Court under Section 35G and to the Supreme Court under Section 35L of the Central Excise Act, 1944 against any order passed by the Appellate Tribunal under Section 86 of the Finance Act, 1994. For the purpose of appreciating the controversy in issue, it would be germane to refer to the provisions of Section 35G and Section 35L of the Central Excise Act, 1944, which to the extent the same are relevant for the present purpose read as under : 35G. Appeal to the High Court. - (1) 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 the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) xxx (3) xxx (4) xxx (5) xxx 35L. Appeal to the Supreme Court. - An a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass certain orders. Section 35E of the Act, insofar as the same is relevant for the present purpose, reads thus : 35E. Powers of Board or Commissioner of Central Excise to pass certain orders. - (1) The Board may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under Section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986) for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Central Excise in its order. (2) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the rate of duty or value of goods is clear, viz., it includes the determination of a question relating to the rate of duty of excise under the Central Excise Tariff Act or any other Central Act providing for levy and collection of duty, relating to the value of goods for the purpose of assessment of any duty of excise; whether any goods are excisable goods or whether the rate of duty of excise on any goods is nil; or whether any goods fall under a particular heading or subheading of the Schedules to the Central Excise Tariff Act, 1985 etc.; or whether any goods are or not covered by a particular notification or order issued by the Central Government or the Board, as the case may be, granting total or partial exemption from duty; or whether the value of any goods for the purposes of assessment of duty of excise shall be enhanced or reduced. Insofar as the applicability of Service Tax is concerned, the rate of determination of duty in terms of the above provisions can be stated to be relating to the rate of Service Tax for the time being in force relating to the value of any service for the purpose of assessment of Service Tax; whether the activity is a service within the mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for ascertaining and imposing duty liability. 15. The Privy Council in the case of Commissioner of Income Tax v. Khemchand Ramdas has observed as under :- One of the peculiarities of most Income-tax Acts is that the word assessment is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the taxpayer. The Indian Income-tax Act is no exception in this respect,............... 16. In Hirjibhai Tribhuvandas v. Income Tax officer Rajnandgaon and Another [1958 33 ITR 448] it was held as under :- In the normal sense to assess means to fix the amount of tax due or to determine such amount . The process of re-assessment is to the same purpose and would thus be included in the connotation of the term assessment. The words levy, assessment and collection as we understand them include all the processes by which the tax is ascertained, demanded and realised and re-assessment being one of those process comes within the ambit of the phraseology employed. It will be observed that section 34 of the Income-tax Act cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and the procedure in that behalf. Section 18A deals with advance payment of tax and imposition of penalties for failure to carry out the provisions therein. Section 23A deals with power to assess individual members of certain companies on the income deemed to have been distributed as dividend, section 23B deals with assessment in case of departure from taxable territories, section 24B deals with collection of tax out of the estate of deceased persons, section 25 deals with assessment in case of discontinued business, section 25A with assessment after partition of Hindu undivided families and sections 29, 31, 33 and 35 deal with the issue of demand notices and the filing of appeals and for reviewing assessment and section 34 deals with assessment of incomes which have escaped assessment. The expression assessment used in these sections is not used merely in the sense of computation of income and there is in our judgment no ground for holding that when by section 44, it is declared that the partners or members of the association shall be jointly and severally liable to assessment, it is only intended to declare the liability to computation of income under section 23 and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5L of the Act which reads as under : Explanation : For the purposes of this subsection, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question- (a) relating to the rate of duty of excise for the being in force, whether under the Central Excise Tariff Act, 1985 or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February. 1986, or (c) whether any goods are excisable goods or whether the rate of duty of excise on any goods is nil; or (d) whether any goods fall under a particular heading or sub-heading of the Schedule to the Central Excise Tariff Act 1985, or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, or that any goods are or not covered by a particular notification or order issued by the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income is, in our judgment not warranted. By the use of the expression rate in the context in which it occurs, undoubtedly a relation between the taxable income and the tax charged is intended, but the relation need not be of the nature of proportion of fraction. The expression rate is often used in the sense of a standard or measure. Provided the tax is computable by the application of a prescribed standard or measure, though not directly related to taxable income, it may be called tax computed at a certain rate. We agree with the High Court that the rebate of tax and the reduction of such rebate are essentially matters of measure or standards of rate. 22. A Division Bench of the Andhra Pradesh High Court in the case of Crane Betel Nut Powder Works v. Commissioner reported in 2006 (5) ALD (NOC104) held that the determination of the rate of duty in relation to any goods includes determination of a question whether any goods are excisable or not. Again, a Division Bench of the Andhra Pradesh High Court in the case of Commissioner of C.Ex., Hyderabad-IV v. Sriram Refrigeration Industries reported in 2009 (240) E.L.T. 201 (A.P.) held that the question whether the process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the rate of duty of excise or to the value of goods for the purposes of assessment Sri Ravinder Narain as submitted that the impugned order passed by the tribunal relates to the value of goods . The said question relating to value of goods has however, arisen on the claims for refund of excise duty submitted by the appellant before the Assistant Collector. In our opinion the question of valuation of goods in the context of a refund cannot be regarded as a question having relation to the value of the goods for the purposes of assessment. The assessment had been completed in the present case and the assessment orders had already been passed. It is only when the goods were returned, the question of refund arose. We are therefore, unable to accept the contention Sri. Ravinder Narain that the appeals are maintainable under clause (B) of the Section 35L of the Act and the appeals are liable to be dismissed 26. The Division Bench of this Court in the case of Premier Irrigation Equipment Ltd. v. UOI reported in 1998 (100) E.L.T. 29 (Kar.) interpreting Section 35L of the Act held as under :- From the reading of the above provisions contained in Section 35L of the Act, it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port or propose to import the same or similar goods. In the decisions of CEGAT in such matters would have wide application they are, by the terms of the statute, to be rendered by Special Benches. The phrase relation to is, ordinarily, of wide import but, in the context of its use in the said expression in Section 129C, it must be read as meaning a direct and proximate relationship to the rate of duty and to the value of goods for the purpose of assessment. Further at para 11 they held as under : 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 purpose of assessment and the Explanation thereto provides a definition of it for the purposes of this sub-section . The Explanation says that the expression includes the determination of a question relating to the rate of duty, to the value of goods for the purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification: and whether the value of goods for the purposes of assessment should be enhanced or reduced having regard to certain matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teries Limited, reported in 2001 (129) E.L.T. 292 (S.C.), the benefit of exemption notification was granted to earlier four consignments and at the stage of clearance of the fifth consignment, the said benefit was denied under the orders of the superior officer without assigning reasons. The Tribunal found fault with the said action and extended the benefit to the fifth consignment also. Aggrieved by the said order of the Tribunal, the revenue preferred an appeal to the Supreme Court directly under Section 130E of the Act. 30. In the case of Commissioner of Customs, New Delhi v. Punjab Stainless Steel Industries, reported in 2001 (132) E.L.T. 10 (S.C.), the allegation against the assessee was that the goods exported under the export obligation were mis-declared. In as much as he used the material of inferior grade to the one required in the manufacture of utensils. The said charge was held to be proved on the basis of the report of the expert and therefore the goods were confiscated. The said order was challenged by the assessee before the Tribunal. The Tribunal set aside the said order. Aggrieved by the same, the revenue directly preferred an appeal under Section 130E of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s order did was to confiscate the said goods allowing the assessee option of redeeming them upon payment of a fine of Rs. 10,000/-. That the assessee might avail of the option, pay the fine and clear the said goods. When question as to the rate of duty and value for the purpose of assessment might possibly arise is far too remote a contingency to satisfy the test that is laid down. Therefore it was held that the principle laid down in the said case squarely apply to the facts of this case, where question involved as stated earlier, was whether fish includes Molluscs and Crustaceans and as such the Crustaceans would otherwise mean and include Prawns/shrimps and hence Prawns and Shrimps should be regarded as a fish for the purpose of assessment and such meaning should be given to the expression fish incorporated as Item No. 7 to the Schedule to the Act. 34. In the case of Commissioner of Customs, New Delhi v. Sony India Limited, reported in 2008 (231) E.L.T. 385 (S.C.), the question involved was whether the assessee had committed breach of Exim Policy. Ultimately, the Tribunal held that there is no breach of Exim Policy and consequently, no duty was paid. The revenue aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and proximately to the value of Service for purposes of assessment. Determination of rate of duty in relation to any Service include determination of a question whether any Service or not, whether the process if any undertaken in the service centre amounts to taxable Service or not, and if the Service rendered during that process are excisable goods or not would fall within the meaning of the expression determination of the rate of duty of excise or the value of the goods for the purposes of assessment of duty used in Section 35G(1) and Section 35L(b) of the Act. Therefore, the phrase rate of tax does not mean fraction of tax payable because what is the tax payable i.e., fraction payable is decided by the legislature. Once that is prescribed by the legislature in the Act, the Court cannot sit in judgment and alter or modify the said rate of tax. The Court has no jurisdiction to go into the correctness or otherwise of the rate of tax payable in the sense the rate prescribed by the legislature. In the case of Finance Act 1994, the rate of service tax payable is uniform to all the services. If rate of tax is to be understood in the sense it is suggested, section 35G and 35L, has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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