9911796707
TMI Blog2024 (12) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... 35G of the CE Act.' Even in the present case, though CESTAT has only considered the issue of limitation and the said issue was framed for consideration vide order dated 23rd January, 2024, the nature of the order, which is appealed, has to be considered. The original order passed by the Commissioner considered the question as to whether CENVAT credit was allowable or not, and whether penalty was imposable or not in terms of the applicable law. It also considered the leviability of service tax on excess baggage charges. Merely because CESTAT has only considered the issue of limitation, the present appeal cannot be filed in the High Court. Conclusion - An appeal against the said impugned order would lie, in terms of Section 35L of the Central Excise Act, 1944, to the Hon ble Supreme Court. The present appeal is dismissed as not maintainable. - JUSTICE PRATHIBA M. SINGH AND JUSTICE AMIT SHARMA For the Appellant Through: Mr. R. Ramchandran, SSC. For the Respondent Through: Mr. Yogendra Aldak, Mr. Agrim Arora, and Ms. Purvi Sinha, Advocates. ORDER PER 1. This hearing has been done through hybrid mode. 2. The present appeal under Section 35G of the Central Excise Act, 1944 has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted against the final liability Therefore, if a view is taken to apply the previous year s ratio, then in view of 6 (3A) (h), no Cenvat would be available in the current year, if in the previous year 100% services were exempt. Further, as per Rule 6 (3A) (g) of the Cenvat Credit Rules, 2004 information for adjustment is required to be given to the department within 15 days from the date of such adjustment. The assessee had made the adjustment of tax on 30/06/2012 and accordingly informed the department on 12/7/2012 (within 15 days from the date of adjustment). Thus, from the above, I am of the view that the demand of Rs. 21.55 crores which has been raised for excess claim of Cenvat during the period July, 2010 to March, 2011 is not tenable . 5. On the second issue i.e., whether service tax on excess baggage charges recovered from passengers should be leviable or not , the findings of the Commissioner are as under: - Thus, in the light of the above mentioned facts in view of the Hon'ble CESTAT's decision, I agree with the assessee's contention that the transport of passenger baggage is indirectly related to the service Transportation of Passengers by Air Service and, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a superior court/ legal authority, the lower Court s order merges into the superior Court s decision. This ensures that all issues attain finality, and the superior Court s order becomes the binding and the operative decision. The Supreme Court emphasized that there cannot be more than one operative order governing the same subject matter at a given time, and the nature of jurisdiction and scope of the challenge must be considered while applying the doctrine of merger. In view thereof, the decision of the CESTAT while dismissing the appeal on the period of limitation, in effect, upheld the findings of the Commissioner on the first and second issue as well. 9. The present appeal has been filed on 30th December, 2023 and vide order dated 23rd January, 2024, only one issue has been framed by this Court in respect of limitation. The issue framed vide the said order is extracted hereunder: Whether the Tribunal has erred in law in holding that the extended period of limitation could not have been invoked by the Department? 10. However, during the course of hearing, it is clear to this Court that upon the issue of limitation being decided, the question of taxability would have to be adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue which - (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. xxx xxx xxx 35L. Appeal to the Supreme Court - (1) An appeal shall lie to the Supreme Court from - (a) any judgment of the High Court delivered - (i) in an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 35G of the Central Excise Act, 1944 it is clear that no appeal would lie to the High Court from an order passed by CESTAT if such an order relates to, among other things, the determination of any question having a relation to the rate of duty or to the valuation of the taxable service. It has nothing to do with the issues sought to be raised in the appeal but it has everything to do with the nature of the order passed by the CESTAT. It may be very well for the appellant to say that it is only raising an issue pertaining to limitation but the provision does not speak about the issues raised in the appeal, on the other hand, it speaks about the nature of the order passed by the Tribunal. If the order passed by the Tribunal which is impugned before the High Court relates to the determination of value of the taxable service, then an appeal from such an order would not lie to the High Court. 4. However, we feel that although those decisions do support the contention of the learned counsel for the respondent, the approach that we have taken is a more direct. We reiterate, it is not the content of the appeal that is determinative of whether the appeal would be maintainable before the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision was interpreted by the Court in the following manner :- 11. 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 purposes 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 valuation of goods for 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 purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to sub-section 5 of Section 129D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have, given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njab Recorders Ltd. - 2004 (165) E.L.T. 34 (P H); (2) Sterlite Optical Technologies Ltd.v. Commissioner of C. Ex., Aurangabad 2007 (213) E.L.T. 658 (Bom.); (3) Commissioner of Customs, Chennai v. Ashu Exports - 2009 (240) E.L.T. 333 (Mad.). 4. However, we feel that although those decisions do support the contention of the learned counsel for the respondent, the approach that we have taken is a more direct. We reiterate, it is not the content of the appeal that is determinative of whether the appeal would be maintainable before the High Court or not but rather the nature of the order 5. In the present case, we find that the impugned order deals not only with the question of limitation but also with the question of valuation. It so happens that in the present case, the issue with regard to the valuation of the taxable services was decided in favour of the revenue but, because the extended period of limitation was not invokable, as per the Tribunal, the respondent-assessee did not prefer any appeal against the said order. But, the order which is impugned before us deals with both the issues, that is, the issue of valuation of taxable services as also the issue of limitation. The mere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
