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TMI Blog2009 (8) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... ther. However, for the sake of convenience, we will take note of facts as they appear in CEAC No. 5/2009. 2. The respondent in this case is Delhi Gymkhana Club Limited. It was served with three show-cause cum demand notices dated 24.6.2002, 3.7.2003 and 18.5.2004 respectively. Service tax in the sum of Rs.22,93,564/-, along with interest payable till the date of its demand under Sections 73 and 75 of the Act, was demanded by these show-cause notices. Penalty under Sections 75A, 76, 77 and 78 of the Act was also proposed. The respondent submitted reply to these show-cause notices challenging the proposed move on the ground that no such service tax was payable by the respondent club as it is the members of the club who were using the facility and there was no such question of providing services by the members to themselves. The Assistant Commissioner, Service Tax Division - I, New Delhi, however, did not agree with the aforesaid contention of the respondent and passed orders dated 18.5.2005 confirming the demand of Rs.22,93,564/- with interest and also imposed penalties. Being aggrieved with the aforesaid order in original, the respondent preferred appeal to the Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal of the club. If any outside agency is called upon to do the needful it may raise a bill along with the service tax upon the club and the club as an agent of the members, is supposed to pay the same. The authority cannot impose service tax twice once upon the people carrying out the business of 'mandap keeper' as well as the members' club for the purpose of using the space for constructing or using it as 'mandap'. Therefore, apart from any other question possibility of double taxation cannot be ruled out. If I explain my first query as above it will be crystal clear that if a person being an owner of the house allows another to occupy the house for the purpose of carrying out any function in that house it will not be construed as transfer of property. But if such person calls upon a third party 'mandap keeper' to construct a 'mandap' in such house then in that case such 'mandap keeper' can be able to raise bill upon the user of the premises along with the service tax. Therefore, I cannot hold it good that members' club is covered by the Finance Act, 1994 for imposition of service tax to use its space as 'mandap'. So far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise to pass certain orders. We are concerned with sub-section (5) and explanation thereto, which is in the following terms :- "35E. Powers of Board or Commissioner of Central Excise to pass certain orders. - xx xx xx (5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of duty or excise or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. Explanation. - For the purposes of this sub-section, 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 time being in force, whether under the Central Excise Tariff Act, 1985 (5 of 1986), 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 of excise in cases where the assessment is made on or after the 28th day of February, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed 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. 9. It is clear from the above that against certain orders appeal is provided to the High Court, whereas in respect of certain other orders passed by the appellate tribunal, direct appeal to the Supreme Court is provided. Section 35L(a) deals with the appeals which are carried from the orders of the High Court. However, clause (b) stipulates the nature of orders passed by the appellate tribunal, against which appeal is to be preferred to the Supreme Court. Where order passed by the appellate 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 purpose of assessment, the aggrieved party is to approach the Supreme Court directly by filing appeal under Section 35L(b). This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods." 11. In view thereof, it is clear that determination of any question in relation to rate of duty or to the value of goods for the purpose of assessment and when it is decided by the CESTAT, appeal thereagainst is provided to the Supreme Court under Section 35L(b) and no such appeal is permissible to the High Court. 12. It would be of interest to note at this stage that in the case of Perfect Electric Concern Pvt. Ltd. v. Asst. Collector/ Commissioner, Central Excise, 2000 (118) ELT 578 (Del), a writ petition was filed against such an order without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding any right of duty or value of goods for the purpose of assessment of any duty. The only question is as to whether the respondent is liable to pay service tax for the services rendered by it in view of Section 65 read with Sections 67 and 105 of the Finance Act. 14. This argument needs outright rejection. Appeal provision is Section 35G, under which these appeals are filed. Therefore, that provision, along with Section 35L, is to be considered (as already done) to decide the issue of maintainability. Moreover, the aforesaid argument will not change the character of the dispute. As is clear from the order of the Appellate Tribunal, in essence, the question that is decided relates to rate of duty. Whether nomenclature thereof is given as service tax, it is the rate of duty of that tax which would essentially fall for consideration. Against such a decision, appeal is filed by the appellant under Section 35G of the Act which would not be maintainable in view of the decision of the Supreme Court in Naveen Chemicals (supra), as discussed in detail above. The remedy for the appellant is to file appeal under Section 35L of the Act, which lies to the Supreme Court. 15. We are, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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