Commissioner of Service Tax Vs Intertoll ICS Ce Cons O & M Pvt Ltd (Delhi High Court)
Delhi High Court has dismissed an appeal filed by the Commissioner of Service Tax against an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) concerning Intertoll ICS Ce Cons O & M Pvt Ltd. The High Court determined that the appeal was not maintainable before it, as the core issue pertained to the “chargeability of the activity” to service tax, which falls under the direct appellate jurisdiction of the Supreme Court.
The appeal initially sought clarification on two questions: whether the respondent was rendering an “auxiliary service” as per Section 65(19) read with Section 65(105)(zzb) of the Finance Act, 1994, and if so, whether it was liable to pay service tax on amounts received from the National Highway Authority of India.
The High Court, citing a string of its own precedents, including Principal Commissioner Goods and Service Tax South v. Premium Real-estate Developers (2020 81 GSTR 424 (Delhi)) and Commissioner of Service Tax v. Gecas Services India Pvt. Ltd. (2015 (39) STR 980 (Del)), affirmed that appeals concerning the chargeability of an activity to service tax must be filed directly with the Supreme Court under Section 83 of the Finance Act read with Sections 35G and 35L(2) of the Central Excise Act, 1944. This position is also clarified by Circular No. 334/15/2014-TRU, dated July 10, 2014, issued by the Central Board of Excise and Customs.
