Karnataka High Court
The Commissioner Fo Central Excise vs M/S S N Uppar And Co on 25 August, 2011
Bench: V.G.Sabhahit, B.Manohar
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 257 DAY OF AUGUST, 201 1 PRESENT Oe THE HON'BLE MR. JUSTICE vskean | AND *, THE HON'BLE MR. JUSTICE B. MANOHAR | 8 C.E.A. NO. 204/2008 BETWEEN: THE COMMISSIONER R-OF CEN TRA EXCISE NO 71. CLUB ROAD, PELGA UM rn APPELLANT (By Sri. SC BHEEMARADD! ADDL.COC) AND: M/S SN UPPAR AND. CO., BELGAUM, | os. ITS PROP..G. CUPP PAR . . BoC. NO.3 PORT, BELG) IM. . RESPONDENT (By Sri. S PARTI HASA RATH I AD Na ) rs CEA. IS OF ILED U/S. 35G OF THE CENTRAL EXCISE ACTS. : "4044 PRAYING TO SET ASIDE THE FINAL ORDER NO: 439/ 2008. DATED 12.03.2008 PASSED BY THE CESTAT. BANGALORE, . BY : CONFIRMING THE ORDER IN APPEAL NO, 316 / 2008 DA TED 30.1 1.2005 PASSED BY THE COMMISSIONER ; (APPEALS) Pe MAN JALORE, 'THIS ITA COMING ON FOR FINAL HEARING. THIS DAY, "_V.G.SABHAHIT, J. DELIVERED THE FOLLOWING:- JUDGMENT
This appeal is filed by the Revenue under. Section po 35G of the Central Excise Act, 1944 [for short 'the Act], Service Tax Appellate Tribunal, South ~Zonal Bench, Bangalore [for short 'the' CESTAT'L, in» Final- Order:
No.439/2008 dated 12.03.2008, raising the. following substantial questions of law: : : -
(i) Whether the Hon'ble. Tribunal has acted according to law ii allowing 'the appeal of the respondent arid 'frejecting the appeal of the appellant?
(ii) Whether the Hon'ble Tribunal is correct in concluding that the respondent is engaged in
- Supply. of labour / !abourer when the facts and "recerds indicate otherwise?
ili) ~ Whether the Hon'ble. Tribunal is right in "allowing party's appeal and rejecting appellant's appeal relying upon the decisions _..0f another Tribunal and on its own decisions, "when these decisions have been challenged ~- berore the respective Hon'ble High Courts?
(iv). Whether the Hon'ble Tribunal iS correct in interpreting the definition of 'cargo handling services' in its limited sense though the definition is broad and inclusive?
A oy
2. Division Bench of this Court in CEA No.55/ 2007 dated 21.04.2011 has held as follows:-
"36. Broadly the following disputes do' not. fal. within the jurisdiction of High Court cunder, Section 35(g) of the Act:-
(a) Dispute relating to the duty "of. x08 a payable on any goods; ~ oe
(b) The value of the goods for. the purposes -- of assessment: .
(c) A dispute as to the slasstication of goods: mo oo
(d) Whether those goods, are cove red by an exemption orn ot, (e e) Whether the value .of "goods: for the purposes of assessnient AS re: equired to be "incheased or decreased"
(Ff) The. question of whet er any goods are excisable goous or not;
_ (g). Whether a process. ic a manufacturing ">. PTOCESS or not, so as to attract levy of
- . excise duty:
© (h) Whether a. particular goods fall within which neading, sub-heading or tariff item ". or the description of goods as mentioned in. Columa No.3 of the Central Excise Tariff Act, 1985.
_ 37, From the aforesaid discussion, it is clear that "an order passed by the Appellate Tribunal relat ting to the determination of any question ~ having relation to the rate of duty of excise or to _ the value of goods for the purposes of " assessment lies to the Supreme Court under Section 35L(b) of the Act and not to the High Court under Section 35G."
sy'
3. Hence, it is not in dispute that in the instant case, dispute relating service tax payable on any service or taxable service is involved and therefore, this appeal "is Snot maintainable and the Revenue has to file an appeal undet - Section 35L of the Act before the Hon'ble Supreme Court... -
4. It is submitted that wherr.the appeal was 'filed. before » this Court in the year 2008, the position was not clear and the same has been settled by Order "dated 21.04.2011 in CEA.55/2007.
Accordingly'. the-appeal is dismissed as not maintaimabie with liberty te. the appellant to file appeal before the Hon'ble Supreme Court under Secticn 25L of the Act. Sd/-
JUDGE Sd/-
JUDGE RKK