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Judgment
ASHWANI KUMAR MISHRA, A.C.J. (Oral)
While entertaining the present State Tax Appeal, this Court, vide order dated 13.05.2025, had raised the issue regarding the maintainability of the appeal. The relevant extract of the said order is reproduced hereunder:
“Learned counsel for respondent raises specific objection regarding maintainability of this appeal while submitting that such an appeal would be maintainable only before the Hon’ble the Supreme Court, because the incidence is relating to taxability and classification. Reference is made to Section 65 (105) (zzr) of the Finance Act, 1994, and provisions of Section 35L of the Central Excise Act, 1944, read with Section 83 of the Finance Act, 1994. Learned counsel for the appellant prays for some time to seek instructions. At request, adjourned to 17.07.2025.”
By way of the present Appeal, challenge is made to the order dated 25.08.2023 passed by the Customs, Excise & Service Tax Appellate Tribunal, Chandigarh (hereinafter referred to as “the Tribunal”) in Service Tax Appeal No.56241 of 2013.
The appellant-Department sought to justify levy of service tax on the royalty claiming it to be under the ‘Intellectual Property Rights’ under reverse charge mechanism. The other question is as to whether the services rendered would amount to ‘Business Auxiliary Service’ or ‘Technical Inspection and Certification Service’.
The objection of the respondent is based upon the provision contained under Section 35L of the Central Excise Act, 1944, read with Section 83 of the Finance Act, 1994, according to which, the issues determined by the Tribunal can be assailed in an Appeal presented to the Hon’ble Supreme Court.
Learned counsel for the appellant does not dispute the fact that the issue, essentially, is relating to taxability & classification and therefore, an Appeal against the order of the Tribunal would be maintainable only before Hon’ble the Supreme Court.
This Court in Commissioner of Income Tax Vs. DLF Golf Resorts Ltd.; 2017 (7) GSTL 202 (P&H), has clearly held in Paras 6 and 7 that approach to the High Court in such circumstances would not be permissible and the remedy available to the appellant-Department will be to prefer an Appeal before Hon’ble the Supreme Court. This view has been reiterated in several other judgments of this Court.
Once that be the position and the objection raised on behalf of the respondent, challenging the maintainability of the present Appeal, having been appropriately met, we hold that the present Appeal is not maintainable and the same is dismissed accordingly.
It shall be open for the appellant-Department to pursue the appropriate remedy in accordance with law.
Pending application(s), if any, shall stand disposed of accordingly.