$~2
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 26.02.2013
+ CEAC 8/2013
COMMISSIONER OF SERVICE TAX DELHI ..... Petitioner
versus
BHARTI AIRTEL LIMITED ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Rahul Kaushik, Adv.
For the Respondent : Mr Tarun Gulati, Mr Neil Hildreth and Mr Shankey
Aggarwal, Advs.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE R.V.EASWAR
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM No.1976/2013 (for delay in refiling)
This is an application for condonation of delay in refiling the
appeal. For the reasons mentioned in the application the delay in refiling
is condoned.
The application is disposed of.
CEAC 8/2013 Page 1 of 6
CEAC 8/2013 and CM 1975-1976/2013
1. This is an appeal against the order dated 15.5.2012 passed by the
Customs, Excise and Service Tax Appellate Tribunal in service tax
appeal no.655/2008. This appeal has been preferred by invoking the
provisions of Section 35G of the Central Excise Act, 1944 read with
Section 83 and the Finance Act, 1994. Learned counsel appearing on
behalf of the respondent/assessee has taken a preliminary objection to the
maintainability of this appeal. According to the learned counsel for the
respondent, an appeal such as the one filed by the appellant herein is not
maintainable before this Court in view of the clear provisions of Section
35G of the Central Excise Act, 1944 which have been made applicable in
respect of matters pertaining to service tax by virtue of Section 83 of the
Finance Act, 1994. On the other hand learned counsel for the appellant
states that the appeal is maintainable because the only point urged on
behalf of the revenue/petitioner is with regard to the question of
limitation under Section 73(1)(a) of the Finance Act, 1994. He submitted
that the Tribunal fell in error inasmuch as it did not permit the revenue to
invoke the extended period of limitation of five years. Therefore,
according to the learned counsel for the appellant, the only issue that is
CEAC 8/2013 Page 2 of 6
sought to be raised is regarding the point of limitation and it has nothing
to do with any question which is related to rate of duty of service tax or to
the valuation of the taxable service. Therefore, according to him, the
present appeal would be maintainable before this Court.
2. We have heard the learned counsel for the parties on this issue at
some length. The provisions of Section 35G of the Central Excise Act,
1944 and, in particular, sub-section (1) thereof read as under:-
"35G. Appeal to 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. "
We may also refer to Section 35L which deals with appeals to the
Supreme Court. The said provision reads as under: -
"35L. An appeal shall lie to the Supreme Court from-
(a) any judgment of the High Court delivered on a reference
made under section 35G or 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 the passing
of the judgment, the High Court certifies to be a fit one for
appeal to the Supreme Court; or
CEAC 8/2013 Page 3 of 6
(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."
3. On a plain reading of Section 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. The learned
counsel for the respondent had referred to the following decisions: -
(1) Commissioner of C. Excise. Chandigarh Vs. Punjab
Recorders Ltd. (2004) 165 ELT 34 (P& H);
CEAC 8/2013 Page 4 of 6
(2) Sterlite Optical Technologies Ltd. Vs. Commissioner of C.
Ex., Aurangabad 2007 (213) ELT 658 (Bom.);
(3) Commissioner of Customs, Chennai Vs. Ashu Exports
2009 (240) ELT 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 which is
impugned in the appeal which determines the issue.
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 fact that the appellant is only aggrieved by the
decision on the point of limitation would not make an appeal from the
CEAC 8/2013 Page 5 of 6
impugned order maintainable before this Court because it is not the issues
raised in the appeal which are material but the nature of the order which
is appealed against which is relevant for the purpose of determining
whether an appeal would lie in this Court or not.
6. In view of the fact that the impugned order deals with the question
of valuation apart from the question of limitation, this appeal would not
be maintainable under Section 35G of the Central Excise Act read with
Section 83 of the Finance Act, 1994. The objection taken by the learned
counsel for the respondent is well founded. It is for this reason that we
dismiss this appeal as being not maintainable.
BADAR DURREZ AHMED, J
R.V.EASWAR, J
FEBRUARY 26, 2013
vld
CEAC 8/2013 Page 6 of 6
|
