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COMMISSIONER OF SERVICE TAX DELHI Vs. BHARTI AIRTEL LIMITED
May, 24th 2013
$~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
 
 
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