Delhi High Court - Orders
Commissioner Of Service Tax vs Intertoll Ics Ce Cons O & M Pvt Ltd on 16 December, 2022
Author: Vibhu Bakhru
Bench: Vibhu Bakhru, Purushaindra Kumar Kaurav
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ST.APPL. 73/2012 & CM APPL. 14357/2012
COMMISSIONER OF SERVICE TAX ..... Petitioner
Through: Ms.Anushree Narain, Standing Counsel.
versus
INTERTOLL ICS CE CONS O & M PVT LTD ..... Respondent
Through: Mr.Karan Sachdev and Mr.Kunal Kapoor,.
Advocates.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 16.12.2022
1. The appellant has filed the present appeal impugning an order dated 23.12.2011, passed by the Customs Excise and Service Tax Appellate Tribunal (CESTAT) in Service Tax Appeal No.1167/2011.
2. By an order dated 16.01.2013, this Court had framed the following questions for consideration:
"(1) Whether the respondent is rendering any business of auxiliary service within the meaning of Section 65(19) read with Section 65(105)(zzb) of the Finance Act, 1994?
(2) If the answer to the first question is in the affirmative, whether the respondent is liable to pay service tax on the amounts received by it from National Highway Authority of India under the contract dated 08.08.2002 between them?"Signature Not Verified Signed By:PRATIMA Signing Date:21.12.2022 13:02:53
3. The learned counsel appearing for the petitioner points out that the present appeal is not maintainable since it raises an issue regarding chargeability of the activity in question. He relies on the decision of the Coordinate Bench of this Court in Principal Commissioner Goods and Service Tax South v. Premium Real-estate Developers: 2020 81 GSTR 424 (Delhi). Paragraph 15 of the said decision reads as under:
"15. It stands authoritatively held by this Court, in catena of pronouncements, including Commissioner of Service Tax v. Gecas Services India Pvt. Ltd. 2015 (39) STR 980 (Del), Commissioner of Service Tax, New Delhi v. Menon Associates 2017 (49) STR 284 (Del), Commissioner of Service Tax v. Amadeus India Pvt. Ltd. 2015 (39) STR 973 (Del) and Commissioner of Service Tax, Delhi v. Transcorp International Ltd. 2016 (41) STR 822 (Del), relying on Section 83 of the Finance Act read with Sections 35G and 35L(2) of the Central Excise Act, 1944, that, where the lis pertains to chargeability of the activity, conducted by the assessee, to service tax, no appeal would be maintainable before this Court, and that the appeal would lie, instead, to the Supreme Court. This position, it has been noted in the said decisions, also stands clarified by Circular No. 334/15/2014-TRU, dated 10th July, 2014 of the Central Board of Excise and Customs".
4. The learned counsel appearing for the appellant also fairly states that it is now well settled that when the question of chargeability of an activity is concerned - such as in this case - appeal would lie to the Supreme Court and would not be maintainable before this court. She however expresses an apprehension that the appellant may be disabled from filing an appeal before the Supreme Court in view of the internal instructions regarding the pecuniary limit for filing such appeals.
5. This Court is not called upon to examine the appellant's policy of Signature Not Verified Signed By:PRATIMA Signing Date:21.12.2022 13:02:53 filing appeals. Since, there is no dispute that the present appeal is not maintainable, the same is dismissed.
6. Needless to state that dismissal of the appeal would not preclude the appellant from availing such remedies as may be available in accordance with law.
VIBHU BAKHRU, J PURUSHAINDRA KUMAR KAURAV, J DECEMBER 16, 2022/MJ Signature Not Verified Signed By:PRATIMA Signing Date:21.12.2022 13:02:53