(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1) We have heard Mr. K.N. Shastri, learned counsel appearing for the appellant and Mr. Dhaval Shah, learned counsel appearing for the respondent.
2) This tax appeal has been filed proposing the following two substantial questions of law, which are extracted below:
“Is there any evidence that the said service provider has performed any service outside India?
Is there any evidence that such taxable service i.e. 'testing and analysis' in this case is partly performed abroad?”
3) Mr. Dhaval Shah, learned advocate for the respondent has raised a preliminary objection that the appeal under Section 35-G of the Central Excise Act, 1944 would not lie to the High Court as the question framed by the Department is with regard to applicability of rate of service tax, then such an appeal where the rate of service tax is in dispute, then the statutory appeal would directly lie to the Apex Court under Section 35-L(b) of the Act. The said two provisions of law Section 35-G(1) and 35-L9B)are extracted as under:
35-G(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July,2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purpose of assessment), if the High Court is satisfied that the case involves a substantial question of law 35-L(b) Any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relatin to the rate of duty of excise or to the value of goods for purpose of assessment.
4) From the aforesaid two provisions, it is apparent that where the rate of service tax is in dispute then an appeal will lie directly to the Apex Court and not to the High Court. The present appeal has been filed under Section 35-G (1) of the Act and, therefore, we are of the considered opinion that the appeal is not maintainable. The Division Bench of the Karnataka High Court in the case of Commissioner of Service Tax, Banglore Vs. Prakash Air Freight Pvt. Ltd., 2011 (23) S.T.R. 220 (Kar.) has held as under:
“The appeal is filed against the order under Section 35-G. The said provision makes it clear that an appeal shall lie to the High Court from every order not being an order, relating to among other things, to the determination of any question having a relation to the rate of duty on excise or to the value of goods for the purpose of assessment. This case, falls squarely within the phrase “determination of any question relating to rate of service tax” and it is the Apex Court alone which has exclusive jurisdiction to decide the said question under Section 35-L of the Act. In that view of the matter, this appeal is not maintainable. This appeal is rejected and liberty is reserved to the revenue to approach the Apex Court against the impugned order.”
5) We are in agreement with the view taken by the Karnataka High Court in the above mentioned case. Since in the instant tax appeal, the rate of service tax, to be applied on the respondents, is in dispute, therefore, the Department has a remedy of filing an appeal under Section 35-L(b) of the Act before the Apex Court. As we have not examined the question of law proposed by the Department, the tax appeal is dismissed with liberty to the appellant to file an appeal under Section 35-L(b) of the Act before the Apex Court. Notice is discharged.
(V.M.SAHAI,J.)
(N.V.ANJARIA,J.)
Vahid