COMMISSIONER OF CENTRAL EXCISE, COCHIN COMMISSIONERATE, C R BUILDING Vs. POPULAR VEHICLES AND SERVICES LTD

JUDGEMENT

(1.) We elaborately heard the arguments addressed on the questions of law in the above cases. But, when we were about to answer the questions, the learned counsel for the respondent-dealer raised two contentions before us. One regarding the maintainability of the appeal under Section 35G of the Central Excise Act, 1944 ('Act' for short) which provision enables an appeal under the Finance Act, 1994 as per Section 83 thereof. The argument is that the issue raised being one of classification, there could be no appeal before the High Court and the same would have to be challenged before the Honourable Supreme Court under Section 35L of the Act. The learned counsel for the respondentdealer also would place reliance on [CCE, C & ST, Thiruvananthapuram v. Kerala State Beverages, (2014) 300 ELT 217 (Ker.)] and [CCE, ST & C, Cochin v. Al-Hussam India Hajj & Umrah Services Management,2016 44 STR 204 (Ker)]. The second contention advanced is that the present litigation policy as framed by the Ministry of Finance has withdrawn, the exception insofar as classification and refund issues, which are of legal/recurring nature. Hence, even with respect to such issues, the monetary limit applies.

(2.) The learned Standing Counsel for the Government of India, however, produced before us an instruction dated 11.7.2018 in which clause 4 is extracted here under:

(3.) However, we have to consider the question as to whether the appeal is maintainable under Section 35G of the Act. Section 35G provides for an appeal to the High Court from every order passed by the Appellate Tribunal on or after the 1st 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. In the present case, there is no such issue arising, is the submission of the learned Standing Counsel for the Revenue. It is submitted that there is only a uniform tax applied under the Finance Act, 1994 and the issue is as to whether the commission obtained by the assessee could be treated to be in lieu of services rendered by the assessee; in which event it would be exigible to service tax.