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TMI Blog2024 (12) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... urt subject to there being satisfaction that the case involves substantial question of law. The definition of Appellate Tribunal is found under Section 2 (9) of the Act of 2017 which again refers to Section 109 of the same Act. Section 109 provides for constitution of Appellate Tribunal and Benches thereof by the Government to be known as Goods and Services Tax Appellate Tribunal for hearing appeals under the order passed by the Appellate Authority or the Revisional Authority. No material has been placed to show that an Appellate Tribunal had been constituted in terms of the said provision. There also cannot be any dispute to the fact that an appeal to this Court under Section 117 would have to be an order passed by the Appellate Tribunal u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant, since the issue of taxability of the services rendered by the respondent is the issue to be decided and therefore, the same squarely falls within the purview of the Hon ble Supreme Court under Section 35L of the Act of 1944. The appeal is therefore dismissed with liberty to the appellant to avail the remedy as is available in law. - HON BLE MR. JUSTICE NELSON SAILO AND HON BLE MRS. JUSTICE MARLI VANKUNG For the Petitioner : Mr. Johny L Tochhawng. For the Respondent : Mr B Lalramenga. JUDGMENT ORDER (NELSON SAILO, J) Heard Mr. Johny L Tochhawng, learned counsel for the appellant and Mr. Tarun Chatterjee, learned counsel appearing for the respondent. [2.] This appeal is preferred under Section 117 of the Central Goods and Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent had rendered services, which is taxable as per the definition under Section 65(31) of Chapter-V of the Finance Act, 1994. The activities of the respondent, therefore, clearly falls under the category of Consulting Engineering Services as also provided under the show-cause Notice dated 22.12.2004 and therefore, the decision of the Commissioner of Customs as well as CESTAT can be challenged in appeal before the High Court. The learned counsel therefore submits that the appeal is maintainable and should be heard on merits. [5.] We have heard the submissions made by the learned counsels for the rival parties and we have perused the materials available on record. [6.] Before entering into the merits of the case what is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purposed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by CESTAT, Kolkata was barred by virtue of Section 35G (1) read with Section 35L of the 1944 Act, since the issue involved in the appeals was regarding the applicability of service tax interest and penalty on transportation of goods to pipelines/Conduit Services undertaking by the respondent assessee and if the same were to be challenged, it can only be resorted to by filing an appeal before the Hon ble Supreme Court. Accordingly, the preliminary objection raised for maintainability of the appeal was sustained. [10.] Coming back to the present case, upon having an overall consideration of the issue raised including the grounds of appeal taken by the appellant, we are of the considered view that since the issue of taxability of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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