High Court of Madhya Pradesh Bench while dismissing an appeal filed by the assessee has upheld the objection by Revenue that where taxability is subject matter of challenge, the appeal would lie to Supreme Court and the appeal before the Hon’ble High Court is found to be not maintainable.
The appellant Capital Enterprises is a Partnership Firm working for Grasim Industries as a Clearing and Forwarding agent under C&F agreement dated 31.03.2000 continued up to 31.03.2004. As per terms and conditions of the aforesaid agreement, the appellant performed certain specified functions for the GIL for which an amount of Rs.2,35,37,228/- was received during the period 01.10.2001 to 30.09.2006. The service tax department has demanded tax in respect of the said revenue.
The appellant, while challenging the order of the CESTAT, approached the High Court contending that the amount reimbursed by the GIL against the expenses cannot be included in a gross/value of commission/ remuneration; hence, no tax is payable by the appellant after deducting the amount of reimbursement of the expenses.
The department contended that since the appellant is challenging the taxability of the service; therefore, this appeal under Section 35 G of the Central Excise Act 1944 is not maintainable. It was contended that in view of Section 35 L of the Act of 1944, the appeal lies before the Apex Court and hence, even otherwise the appeal is not maintainable before this Court
Justice Vivek Rusia & Justice Amar Nath (Kesharwani) observed that “Even otherwise the appellant is challenging the taxability of the services rendered by him and not the amount of tax or value of the goods, therefore, Shri Prasad, learned counsel for the respondents has rightly objected to the maintainability of this appeal filed under Section 35 G of the Central Excise Act 1944. In view of Section 35 L of the Act of 1944, the appeal lies before the Apex Court.”
For Commissionerate, Ujjain, was represented by Senior CGSC Mr. Prasanna Prasad.
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