Orissa High Court
Central Excise vs M/S. A.K. Das Associates Ltd. on 7 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
OTAPL No. 7 of 2015 and OTAPL No. 6 of 2015
OTAPL No.7 of 2015
Central Excise, Customs and Service
.... Appellant
Tax, Bhubaneswar-1, represented
through its Commissioner
-versus-
M/s. A.K. Das Associates Ltd., H/1, .... Respondent
Satyanagar, Bhubaneswar
AND
OTAPL No.6 of 2015
Central Excise, Customs and Service
.... Appellant
Tax, Bhubaneswar-1, represented
through its Commissioner
-versus-
M/s. A.K. Das Associates Ltd., H/1, .... Respondent
Satyanagar, Bhubaneswar
Advocates, appeared in these cases:
For Appellant(s) : Choudhury Satyajit Mishra
Senior Standing Counsel
For Respondent(s) : Mrs. Pami Rath, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE M.S. RAMAN
ORDER
07.12.2022
Dr. S. Muralidhar, CJ.
1. A preliminary objection has been raised by the Respondent-
Assessee to the maintainability of the present appeal relying on
the judgment of the Supreme Court of India in Navin Chemicals
Mfg. and Trading Co. Ltd. v. Collector of Customs (1993) 4 SCC
320. It is contended by Mrs. Pami, Rath, learned counsel for the
OTAPL Nos.7 of 2015 and 6 of 2015
Respondent Assessee that inasmuch as the dispute emanating
from the impugned order of the Customs, Excise and Service Tax
Appellate Tribunal (CESTAT) concerns the rate of duty, the
recourse for the Appellant Department is to file an appeal directly
in the Supreme Court of India under Section 35L of the Central
Excise Act, 1944 (CE Act).
2. It is seen from the impugned order of the CESTAT that the
Assessee was claiming exemption from payment of duty under a
notification No.45 of 2010 dated 20th July, 2010 issued under
Section 11-C of the CE Act read with Section 83 of the Finance
Act in terms of which no service tax was required to be paid in
respect of taxable services relating to transmission and
distribution of electricity for a period up to 21st June, 2010.
According to the Respondent, since the appeal before the
CESTAT covered the period specified in the notification, the
Respondent was exempt from payment of any service tax. This
plea was accepted by the CESTAT following the earlier decisions
of its Co-Ordinate Benches.
3. In Navin Chemicals Mfg. and Trading Co. Ltd. (supra), the
Supreme Court clarified that "questions relating to rate of duty
and to the value of goods for the purposes of assessment are
questions that squarely fall within the meaning of the expression
'determination of any question' having a relation to the rate of
duty or to the value of goods for the purposes of assessment" in
Section 129D(5) of the Customs Act, 1962 which corresponds to
Section 35L (2) of the CE Act. It was further clarified that "a
dispute as to the classification of goods and as to whether or not
OTAPL Nos.7 of 2015 and 6 of 2015
they are covered by exemption notification relates directly and
proximately to the rate applicable thereto for the purposes of
assessment."
4. It may be noticed here that a similar view has been taken by
several High Courts including the High Court of Bombay in APM
Terminals India Pvt. Ltd. v. Commissioner of Central Excise,
Navi Mumbai MANU/MH/3535/2018; Commissioner of CGST
and Central Excise v. Hindustan Petroleum Corporation Ltd.
MANU/MH/4297/2021, the Delhi High Court in Commissioner
of Service Tax Delhi v. Bharati Airtel Limited
MANU/DE/0591/2013, and the Karnataka High Court in
Commissioner of S.T., Bangalore v. Scott Wilson Kirkpatrick
(I) Ltd. 2011 (23) S.T.R. 321 (Kar.).
5. In that view of the matter, while not entertaining the present
appeals the Court leaves it open to the Appellant to file an
appropriate appeal under Section 35L(1)(b) of the CE Act in the
Supreme Court of India against the impugned order of the
CESTAT in accordance with law.
6. The appeals are disposed of in the above terms.
(S. Muralidhar)
Chief Justice
(M.S. Raman)
Judge
S.K.Jena/Secy.
OTAPL Nos.7 of 2015 and 6 of 2015
