The Court dismissed Civil Miscellaneous Appeals because they were not maintainable. Appeals against Tribunal orders involving classification or duty rates must go to the Supreme Court under Section 35-L, not the High Court.
Civil Miscellaneous Appeals dismissed as not maintainable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.06.2016
C O R A M
THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
Civil Miscellaneous Appeal Nos.3124 and 3125 of 2008
The Commissioner of Central Excise
Pondicherry Commissionerate
Goubert Avenue
Beach Road
Pondicherry 605 001. ... Appellant in both the
Appeals/Respondent
Vs
1. Customs, Excise and Service Tax
Appellate Tribunal
Chennai, South Regional Bench
Chennai 600 006.
2. M/s. CMS (India) Operations & Maintenance
Company P. Ltd
Uthangal 607 604
Vridhachalam Taluk. ... Respondents in both
the Appeals/Appellants
Prayer: Appeals filed under Section 35 G of Central Excise Act, 1944 against Final Order Nos.614 and 615 of 2007 dated 21/5/2007 on the file of the Customs, Excise and Service Tax Appellate Tribunal, Southern Regional Bench, Chennai 600 006 against the Order of the Commissioner of Central Excise(Appeals) 26/1, Mahatma Gandhi Road, Chennai 600 034 in Appeal No.126 of 2005 (P)(ST) dated 26.12.2005.
Mr.R.Venkatavaradan for R.2
R.1 - Tribunal
C O M M O N J U D G M E N T
(Judgment of the Court was made by S.Manikumar,J)
These Appeals have been filed against the order of the Customs, Excise and Service Tax Appellate Tribunal, Chennai, dated 21/5/2007.
“1. Whether Tribunal, by recourse to the general meaning of the term “Service” and decisions rendered in the context of other legislations, is right in holding that the second respondent did not render composite services bearing the essential characters of taxable service of Maintenance and Repair, Business Auxillary Services, Management Consultancy, Consulting Engineering Services and C & F Agents stipulated under Section 65 A (2) (b) of Finance Act, 1994?
(ii). Whether the Tribunal is right in holding that the second respondent is the manufacturer of Electricity, contrary to the fact that ST-CMS is the manufacturer of Electricity as evident in the Power Purchase Agreement between the TNEB and STCMS and in extension of the Notification No.08/2005-ST dated 1/3/2005 amended by Notification No.19/2005-ST dated 1/3/2005, accordingly, exempting service tax on the Business Auxicillary Service of manufacture of goods on behalf of clients even for the Service Tax liable to be paid by the second respondent for the manufacture of electricity on behalf of ST-CMS for the period prior to 1/3/2005?”
of any question having a relation to the right of duty of excise or to the value of goods for purposes of assessment. He also submitted that in a matter involving duty, relatable to classification, the order of Customs, Excise and Service Tax Appellate Tribunal, Madras, cannot be challenged in High Court and that the revenue has to file an appeal directly to the Hon'ble Supreme Court, under Section 35-L of the Central Excise Act, 1944. Thus, the learned counsel appearing for the second respondent raised a preliminary objection to the maintainability of the instant appeals.
“Appeal to High Court – (1) An appeal shall like 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 purposes of assessment), if High Court is satisfied that the case involves a substantial question of law.”
“Appeal to Supreme Court – (1) An appeal shall lie to the Supreme Court from (a) any judgment of the High Court delivered -
(i). in an appeal made under Section 35-G; or (ii). On a reference made under Section 35-G by the Appellate Tribunal before the 1st day of July, 2003; (iii). On a reference made under Section 35H
in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of
the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b). any order passed [before the establishment of the National Tax Tribunal] by the Appellate Tribunal 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 purposes of assessment.”
Civil Miscellaneous Appeal Nos. 3124 and 3125 of 2008
UG(CO) CA(28/06/2016)
3 issues framed by the court
Whether Civil Miscellaneous Appeals filed under Section 35-G of the Central Excise Act, 1944 against the Tribunal's order are maintainable.
Whether Tribunal orders relating to the classification or rate of duty of excise can be challenged in the High Court pursuant to Section 35-L.
Whether this Court can adjudicate the substantial questions of law raised in these appeals if they are not maintainable.
3 provisions across 2 enactments
Commissioner of Central Excise, Pondicherry Commissionerate
Customs, Excise and Service Tax Appellate Tribunal, Chennai
M/s. CMS (India) Operations & Maintenance Company P. Ltd
S. Manikumar
D. Krishnakumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
