HC has no jurisdiction on Issue of classification of service

HIGH COURT OF KARNATAKA

Commissioner of Central Excise

versus

Chadha Auto Agencies

C.E.A. NO. 210 OF 2008-

July 30, 2012

JUDGMENT

N. Kumar, J.

The Revenue has preferred this appeal challenging the order passed by the Tribunal which has held the activity carried on by the assessee cannot be brought within the definition of ‘business auxiliary service’ so as to escape payment of service tax.

2. The assessee contends that their business falls within the meaning of ‘business support service’ for which no service tax is payable prior to 2006. Therefore, they are not liable to pay any tax. Therefore, the question that arises for consideration in this appeal is:

“Whether the activity carried on by the assessee falls within the ‘business auxiliary service’ or ‘business support service’?

3. This appeal is filed under section 35G of the Central Excise Act, 1944. The said question normally falls within the meaning of the words:

“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 purposes of assessment.”

Therefore, this Court has no jurisdiction to entertain this appeal under section 35G of the Central Excise Act, 1944, as held by this Court in the case of CCE v. Mangalore Petrochemicals Ltd. in CEA No.6/2007 disposed of on 01.09.2010. The said question has to be adjudicated by the Apex Court under section 35L of the Central Excise Act, 1944. Hence, the appeal is not maintainable.

4. Accordingly we pass the following order:

ORDER

 (I)  The appeal is rejected as not maintainable. However, liberty is reserved to the Revenue to prefer an appeal under section 35L of the Central Excise Act, 1944 to the Apex Court.

(II)  Office is directed to return the certified copies of the orders produced, to the Department to prefer the appeal.

NF