Case Note & Summary
The case involves a batch of appeals filed by the Commissioner of Central Excise & Service Tax, Pune (Revenue) against an order dated 28th March 2013 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), West Zonal Bench at Mumbai. The respondent-assessee, M/s. Credit Suisse Services (I) Pvt. Ltd., had claimed refund of service tax under Section 11B of the Central Excise Act, 1944, read with Notification No.9/2009-ST or Notification No.15/2009-ST, for services wholly consumed in a Special Economic Zone (SEZ). The Revenue framed two substantial questions of law: (i) whether CESTAT was right in holding that refund was available under Section 11B when the claim was filed under the notifications, and (ii) whether the assessee was eligible for refund at all when Notification No.15/2009-ST specifically provided exemption for services wholly consumed in SEZ. At the hearing, the assessee raised a preliminary objection regarding the maintainability of the appeals before the High Court, relying on Section 35-G(1) of the Central Excise Act, 1944. The assessee argued that the questions of law related to the rate of duty of excise, and therefore, the appeals should lie to the Supreme Court, not the High Court. The Court examined the language of Section 35-G(1), which provides that an appeal to the High Court lies from an order of the Tribunal if it does not relate to the rate of duty of excise. The Court noted that the refund claim was based on notifications that granted exemption from service tax, which is a matter relating to the rate of duty. Consequently, the Court held that the appeals were not maintainable before the High Court and dismissed them, leaving it open to the Revenue to pursue an appeal to the Supreme Court.
Headnote
A) Central Excise - Maintainability of Appeal - Section 35G Central Excise Act, 1944 - Rate of Duty - The Revenue filed appeals against CESTAT order allowing refund of service tax under Section 11B of the Central Excise Act, 1944 for services consumed in SEZ. The assessee raised a preliminary objection that the appeals were not maintainable before the High Court as the questions of law related to the rate of duty. The Court held that the issue of refund under notifications granting exemption from service tax for services wholly consumed in SEZ is a matter relating to the rate of duty, and therefore, the appeal lies to the Supreme Court under Section 35G(1) of the Central Excise Act, 1944. The appeals were dismissed as not maintainable. (Paras 1-10)
Issue of Consideration
Whether the appeals filed by the Revenue under Section 35-G of the Central Excise Act, 1944 are maintainable before the High Court when the questions of law relate to the rate of duty of excise.
Final Decision
The Court upheld the preliminary objection and dismissed the appeals as not maintainable, holding that the appeals lie to the Supreme Court under Section 35-G(1) of the Central Excise Act, 1944.
Law Points
- Maintainability of appeal
- Rate of duty
- Refund of service tax
- Section 35G Central Excise Act
- 1944
- Notification 9/2009-ST
- Notification 15/2009-ST
