Right Of Appeal Relating To Value Of Service Maintainable Before Supreme Court: Meghalaya High Court

The Meghalaya High Court has held that the right of appeal relating to the value of service is maintainable before the Supreme Court.

The bench of Chief Justice S. Vaidyanathan and Justice W. Diengdoh has observed that there is an appellate remedy available to the appellant or to the aggrieved party in terms of Section 35G of the Central Excise Act, 1944; the issue pertaining to the value of service cannot be agitated before the High Court. The party has a right only before the Supreme Court in terms of Section 35L.

The appellant or department has preferred the appeal against the order of the Tribunal dated June 23, 2023.

The respondent or assessee contended that the right of appeal relating to the value of service is not maintainable before this Court. However, both parties stated that Section 35G deals with appeals to the High Court. At the time of the introduction of the National Tax Tribunal Act, 2005, w.e.f. July 1, 2003, the appeal provision was deleted. In view of the order of the Supreme Court staying the provision, the old provision of Section 35G permitting the aggrieved party to prefer an appeal still exists.

Section 35G deals with the appeal to the high court. It states that 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 the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court, and such appeal under this sub-section shall be filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party, accompanied by a fee of two hundred rupees where such an appeal is filed by the other party, in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2) if it is satisfied that there was sufficient cause for not filing the same within that period.”

Section 5L deals with the appeal to the Supreme Court. An Appeal shall lie to the Supreme Court from any judgement of the High Court delivered in an appeal made under section 35G; or on a reference made under section 35G by the Appellate Tribunal before 1st day of July, 2003; 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 judgement, the High Court certifies to be a fit one for appeal to the Supreme Court; 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 excise or to the value of goods for purpose of assessment. For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment.”

The court held that the appellant preferred the appeal, giving liberty to the appellant to approach the apex court if so advised. It is open to the parties to take a plea before the Supreme Court that the period during which this appeal is pending may be excluded for the purpose of limitation.

Counsel For Appellant: N. Mozika

Counsel For Respondent: Bharat Raichandani

Case Title: The Commissioner of Central Goods & Services Tax and Central Excise Versus M/s Walchandnagar Industries Limited

Case No.: Central Excise Ap.No.2/2024

Click Here To Read The Order