- Commissioner of Central Tax Vs Samiah International Builder Pvt. Ltd. (Delhi High Court)
- Appeal Under Section 35G
- Dispute Regarding Maintainability
- Appellant's Submission on Maintainability
- Delhi High Court's Consideration
- Allahabad High Court Decision Distinguished
- No Basis to Depart from Division Bench Decision
- Final Decision
- Cases Discussed
Commissioner of Central Tax Vs Samiah International Builder Pvt. Ltd. (Delhi High Court)
Summary: The Delhi High Court considered the maintainability of an appeal filed under Section 35G of the Central Excise Act, 1944, as applicable to service tax matters under the Finance Act, 1994, read with Section 174 of the Central Goods and Services Tax Act, 2017. The appeal challenged Final Order No. ST/A/51686-51687/2023-ST{DB} dated 22.12.2023 passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi, in Service Tax Appeal No. ST/55788/2014 filed by the respondent and Service Tax Appeal No. ST/55922/2014 filed by the Revenue, arising from Order-in-Original No. 20/2016-ST dated 06.12.2016 passed by the Commissioner of Central Excise, Delhi-III, Gurgaon.
The respondent disputed the maintainability of the appeal before the High Court. It was contended that the expression “determination of any question having a relation to the rate of duty of excise” in Section 35L of the Central Excise Act, 1944 was wide enough to encompass the question of taxability of a particular service. Reliance was placed on the Delhi High Court Division Bench decision in Commissioner of Central Tax, CGST Delhi East v. JMD Limited, 2024 SCC OnLine Del 9141.
The appellant, on the other hand, submitted that the Allahabad High Court in NKG Infrastructure Ltd. v. Commissioner of Customs, Central Excise & Service Tax, 2017 (47) S.T.R. 113 (All.) had held that an appeal before the High Court was maintainable where taxability of a particular service was in dispute.
The Delhi High Court held that its Division Bench had already determined that where the CESTAT determines the taxability of a particular service, an appeal against such determination lies before the Supreme Court under Section 35L of the Central Excise Act, 1944, and not before the High Court. The Court noted that this conclusion had been reached relying upon Commissioner of CGST and Central Excise, Delhi South v. M/s Spicejet Ltd., SERTA 2/2024.
The Court examined the Allahabad High Court decision in NKG Infrastructure Ltd. and found that only the questions framed therein had been adjudicated, while the issue of maintainability of an appeal before the High Court had neither been raised nor considered. The appellant also failed to persuade the Court that the Division Bench decision had overlooked any relevant statutory provision or binding precedent warranting a different view.
Accordingly, the Delhi High Court held the present appeal to be not maintainable before it and relegated the appellant to avail the appropriate statutory remedy before the Supreme Court under Section 35L of the Central Excise Act, 1944. The appeal along with the pending application was accordingly dealt with in terms of the Court’s decision.
Appeal Under Section 35G
The present appeal was filed under Section 35G of the Central Excise Act, 1944, as made applicable to service tax matters under the Finance Act, 1994, read with Section 174 of the CGST Act.
The appeal assailed Final Order No. ST/A/51686-51687/2023-ST{DB} dated 22.12.2023 passed by the CESTAT, Principal Bench, New Delhi.
The proceedings before the CESTAT arose from Order-in-Original No. 20/2016-ST dated 06.12.2016 passed by the Commissioner of Central Excise, Delhi-III, Gurgaon.
Dispute Regarding Maintainability
The maintainability of the appeal before the Delhi High Court was disputed by the learned counsel appearing for the respondent.
The respondent relied upon Section 35L of the Central Excise Act, 1944 and contended that the expression “determination of any question having a relation to the rate of duty of excise” was wide enough to encompass the question of taxability of a particular service.
In support of this contention, reliance was placed upon the Division Bench decision of the Delhi High Court in Commissioner of Central Tax, CGST Delhi East v. JMD Limited, 2024 SCC OnLine Del 9141.
Appellant’s Submission on Maintainability
The learned counsel appearing for the appellant submitted that the Allahabad High Court in NKG Infrastructure Ltd. v. Commissioner of Customs, Central Excise & Service Tax, 2017 (47) S.T.R. 113 (All.) had held that an appeal before the High Court was maintainable where the taxability of a particular service was in dispute.
Delhi High Court’s Consideration
The Court considered the submissions advanced by the learned counsel for the parties.
The Court observed that the Division Bench of the Delhi High Court had held that where the CESTAT determines the taxability of a particular service, an appeal against that determination would lie before the Supreme Court under Section 35L of the Central Excise Act, 1944, and not before the High Court.
TaxGuru has also discussed the statutory appellate position that a appeal lies to Supreme Court when issues of determining taxability or valuation are involved.
In arriving at that conclusion, the Division Bench had relied upon Commissioner of CGST and Central Excise, Delhi South v. M/s Spicejet Ltd., SERTA 2/2024.
Allahabad High Court Decision Distinguished
The Delhi High Court examined the judgment of the Allahabad High Court in NKG Infrastructure Ltd. (supra).
The Court found that only the questions framed in that case had been adjudicated. The issue concerning maintainability of an appeal before the High Court was neither raised nor considered in that proceeding.
Accordingly, the decision relied upon by the appellant did not persuade the Delhi High Court to take a different view on maintainability.
No Basis to Depart from Division Bench Decision
The Court further recorded that the learned counsel appearing for the appellant had failed to persuade it that the aforesaid Division Bench decision had overlooked any relevant statutory provision or binding precedent warranting a different view.
In view of the Division Bench decision and the Court’s consideration of the authorities relied upon by the parties, the Court held that the present appeal was not maintainable before it.
Final Decision
The Delhi High Court held that the present appeal was not maintainable before the Court.
The appellant was relegated to avail the appropriate statutory remedy before the Hon’ble Supreme Court under Section 35L of the Central Excise Act, 1944.
TaxGuru’s publication on filing of appeal in the wrong forum in matters relating to valuation or determination of rate of duty also discusses the appellate forum contemplated under Section 35L.
Accordingly, the present appeal along with the pending application was dealt with in terms of the aforesaid decision.
Cases Discussed
- Commissioner of Central Tax, CGST Delhi East v. JMD Limited, 2024 SCC OnLine Del 9141 — Delhi High Court
- Commissioner of CGST and Central Excise, Delhi South v. M/s Spicejet Ltd., SERTA 2/2024 — Delhi High Court
- NKG Infrastructure Ltd. v. Commissioner of Customs, Central Excise & Service Tax, 2017 (47) S.T.R. 113 (All.) — Allahabad High Court
