Rajasthan High Court - Jaipur
Baba Ram Dev Construction And Engineer vs Additional Commissioner, Central ... on 13 August, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
[2024:RJ-JP:34257-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Central/excise Appeal No. 1/2024
Baba Ram Dev Construction And Engineer, 71, Patel Nagar,
Behind Ram Mandir, Hawa Sadak, Sodala, Jaipur Through
Proprietor Shri Deepak Agarwal
----Appellant
Versus
Additional Commissioner, Central Goods And Service Tax
Department, Commissionerate Jaipur Earlier Know As Central
Excise Commissionerate Jaipur-1 Jaipur (Raj.)Having Its Office
At New Central Revenue Building Statute Circle Bhagwan Das
Road Jaipur
----Respondent
For Appellant(s) : Mr. Siddharth Ranka with Mr. Rohan Chattar For Respondent(s) : Mr. Vedant Agarwal HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order 13/08/2024 AVNEESH JHINGAN, J (ORAL):
1. This appeal under Section 35-G of the Central Excise Act, 1944 (for short 'the Act') read with Section 83 of Finance Act, 1994 is filed against the order passed by Customs Excise & Service Tax Appellate Tribunal (for short 'the Tribunal').
2. Brief facts are that the appellant is engaged in providing services of "Construction of Complex, Management, Maintenance or Repair services etc. A show cause notice dated 18.10.2011 was issued for the period 2006-2007 to 2010-2011 inter alia to show cause as to why service tax was not paid under the category of "Construction of Complex Services". The Adjudicating Officer vide (Downloaded on 23/08/2024 at 10:32:28 PM) [2024:RJ-JP:34257-DB] (2 of 4) [EXCIA-1/2024] order dated 22.02.2013 confirmed the demand. The appellant after partial success before the First Appellate Authority and on dismissal of the appeal by the Tribunal, approached this Court.
3. Following substantial questions of law have been proposed:-
"I. Whether the Ld. CESTAT is correct to uphold that the services provided by the appellant to Rajasthan Housing Board/PHED which are non- commercial state Government entity/department are chargeable to Service Tax and are not exempt from Tax.
II. Whether the Ld. CESTAT is correct to upheld the levy of penalty on disputed issue of classification and interpretation thereof. III. Whether the Ld. CESTAT is correct to upheld the invocation of extended period of limitation."
4. Section 35(G) of the Act provides for appeal to the High Court against the order passed by the Tribunal, if this Court is satisfied that substantial questions of law is involved. The exception being the questions relating to rate of duty of excise or value of goods for the purpose of assessment. Section 35-L provides for the cases where the appeal shall lie to the Supreme Court. As per Section 35-L(i)(b) on issue of determination of question relating to rate of duty, value of the goods for purpose of assessment, the appeal shall lie to the Supreme Court.
5. The Supreme Court in the case of Navin Chemicals Mfg. And Trading Co. Ltd. Vs. Collector of Customs reported in (1993) 4SCC320 has held as under:-
"11. It will be seen that Sub-section 5 uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes of this sub-section'. The (Downloaded on 23/08/2024 at 10:32:28 PM) [2024:RJ-JP:34257-DB] (3 of 4) [EXCIA-1/2024] Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes/of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to Sub-section 5 of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have, given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression."
(emphasis supplied)
6. The Supreme Court in another case of Commissioner of Customs, Bangalore-1 Vs. Motorola India Ltd. reported in (2019) 9 SCC 563 has held as under:-
"16. We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to the Court.
(i) determination of a question relating to a rate of duty;
(ii) determination of a question relating to the valuation of goods for the purpose of assessment;
(iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification;
(iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for."(Downloaded on 23/08/2024 at 10:32:28 PM)
[2024:RJ-JP:34257-DB] (4 of 4) [EXCIA-1/2024]
7. The first proposed question is as to whether the appellant is covered under the exemption notification or services are exigible to tax, the issue falls within the ambit of Section 35-L of the Act and the appeal shall lie to the Supreme Court.
8. The appeal is dismissed as not maintainable.
(ASHUTOSH KUMAR),J (AVNEESH JHINGAN),J
Chandan/MR/150
Reportable: Yes
(Downloaded on 23/08/2024 at 10:32:28 PM)
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