9911796707
TMI Blog2023 (12) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... 11) TMI 970 - DELHI HIGH COURT ] wherein, a similar issue was considered regarding the concurrent appellate jurisdictions of the High Court and the Supreme Court. The discussion was, thus, made whether the appeal was maintainable before the Delhi High Court and after recording a finding that the issue was that whether service tax was payable and whether the service rendered was export and no service tax was payable, the appeal was directed to be returned back to take appropriate steps as per law. Faced with this situation, counsels for the Revenue also could not point out any judgment to the contrary. The appeal is not maintainable and the same is dismissed. - HON'BLE MR. JUSTICE G.S. SANDHAWALIA AND HON'BLE MS. JUSTICE LAPITA BAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of law which is posed by the appellant-Revenue reads thus:- i) Whether the services being provided by the respondent fall under the category of 'intermediary services' under Rule 2(f) of the Place of Provision of Service Rules, 2012 and as such liable to pay service tax? 3. A perusal of the order dated 27.02.2018 (Annexure A-10) passed by the Tribunal would go on to show that the challenge in appeal before the Tribunal was regarding the denial of the refund claimed for the period from April 2015 to September, 2015 filed under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012 dated 18.06.2012. The argument before the Tribunal was that the assessee was not liable to pay service tax and was not cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lie to the High Court not being to an order relating 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. An appeal under Section 35L(2) of the Act would lie only to the Supreme Court regarding the issue of determination of taxability or excisability of goods for the purposes of assessment. Section 35G(1) reads thus:- 35G.(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 Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was maintainable before the Delhi High Court and after recording a finding that the issue was that whether service tax was payable and whether the service rendered was export and no service tax was payable, the appeal was directed to be returned back to take appropriate steps as per law. The said judgment reads thus:- The Commissioner of Service Tax has filed the present appeal under Section 83 of the Finance Act, 1994 read with Section 35G of the Central Excise Act, 1944 against order dated 2nd January, 2014 passed in appeal No. ST/1402/2011 by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT, for short). 2. Decisions of the CESTAT can be challenged under Section 35G the Central Excise Act, 1944 before the jurisdictional Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the rate of duty/tax or value of goods or services along with other questions, the appeal is maintainable only under Section 35L of the Central Excise Act, 1944, before the Supreme Court and not before the jurisdictional High Court. This Court in Commissioner of Income Tax versus Ernst and Young Pvt. Ltd. 2014 (34) STR 3 (Delhi), has held that any question having relation to rate of duty would include determination of taxability or levy of tax on a particular service even prior to the amendment by the Finance Act (No.2), 2014. Further, the determination of the question/issue in the order-in-original would decide the appellate forum under Section 35L or 35G of the Central Excise Act, 1944, as any other interpretation would lead to incongr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was covered by clause (iii) of Rule 3(1) of the Export of Services Rule, 2005 and other applicable rules. The respondent-assessee had also relied on certain circulars issued in support of their contention that once the assessee was engaged in export of services, they were not exigible or liable to pay service tax. 6. We do not agree with the submissions of the counsel for the appellant-Revenue that the issue raised in the order in original and in the appellate orders did not relate to question of levy of duty/tax or rate of duty/tax. The precise issue, which had arisen was whether the assessee was engaged in export of services and, therefore, whether service tax was payable. Reliance was placed by the respondent-assessee on the Rules to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
