Appeal On Taxability Including Point Of Limitation Doesn’t Lie Before HC U/S 35G Of Central Excise Act: Delhi High Court
The Delhi Excessive Court docket has reiterated that an attraction from CESTAT beneath the Central Excise Act 1944 involving the problem of taxability will lie earlier than the Supreme Court docket beneath Part 35L.
A division bench of Justices Prathiba M. Singh and Rajneesh Kumar Gupta dominated that such an attraction, even on a restricted level of limitation, won’t lie earlier than the Excessive Court docket beneath Part 35G. It noticed,
“Even when the query of limitation has been raised, the Court docket has to enter the deserves of the matter after a choice on the query of limitation is made. The maintainability of the attraction must be examined on the mentioned benchmark…The apparent conclusion can be that if this Court docket holds that the SCN was throughout the limitation, the problem of taxability must be gone into.”
Within the case at hand, the Division had most well-liked an attraction beneath Part 35G towards a CESTAT order setting apart demand for restoration of service tax to the tune of Rs.3,13,01,189/- from the Respondent, an Web Service Supplier.
CESTAT had dominated in Respondent’s favour on the bottom that the Present Trigger Discover issued to it by the Division was barred by limitation.
Respondent moved an utility, contesting the maintainability of the Division’s attraction on the bottom that difficulty of taxability (i.e. whether or not Respondent is entitled to exemption from service tax beneath a 2004 Notification) would come up on this matter and, due to this fact, the attraction would lie beneath Part 35L to the Supreme Court docket.
The Division nevertheless contended that the CESTAT had merely adjudicated the query of limitation and had not gone into the deserves, thus the attraction towards the impugned order would lie earlier than the Excessive Court docket.
Disagreeing with the Division, the Excessive Court docket referred to Commissioner of CGST and Central Excise Delhi South v. M/s Spicejet Ltd. (2024) whereby the Excessive Court docket had held that even when the impugned order has dealt solely with the problem of limitation, the attraction would misinform the Supreme Court docket alone.
The Excessive Court docket had reasoned that the expression used “dedication of any query in relation to charge of obligation or worth for the aim of evaluation” utilized in Part 35L provides a broad expanse to the appellate jurisdiction of the Supreme Court docket in respect of query regarding charge of tax or worth for the aim of evaluation.
It was additionally held that if the impugned order pertains to a number of points however when one of many questions raised pertains to charge of tax or valuation, the attraction is maintainable earlier than the Supreme Court docket and no attraction lies earlier than the Excessive Court docket beneath Part 35G.
In mild of the above the Excessive Court docket rejected the attraction as non-maintainable, stating,
“The mere proven fact that the appellant is just aggrieved by the choice on the purpose of limitation wouldn’t make an attraction from the impugned order maintainable earlier than this Court docket as a result of it’s not the problems raised within the attraction that are materials however the nature of the order which is appealed towards is related for the aim of figuring out whether or not an attraction would lie on this Court docket or not.”
The Court docket nevertheless granted liberty to the Division to avail of its treatment beneath Part 35L earlier than the Prime Court docket.
Look: Mr. Atul Tripathi, SSC with Mr. Gaurav Mani Tripathi & Mr. Shubham Mishra, Advocates for Appellant; Mr. J. Ok. Mittal with Ms. Vandana Mittal & Mr. Mukesh Choudhary, Advocates for Respondent
Case title: Commissioner Of Service Tax Delhi v. Shyam Spectra Non-public Restricted
Case no.: SERTA 5/2025
