COMMISSIONER Vs. B A RESEARCH INDIA LTD

JUDGEMENT

(1.) We have heard Mr. K.N. Shastri, learned counsel appearing for the appellant and Mr. Dhaval Shah, learned counsel appearing for the respondent. This tax appeal has been filed proposing the following two substantial questions of law, which are extracted below:

(2.) Mr. Dhaval Shah, learned advocate for the respondent has raised a preliminary objection that the appeal under Section 35G of the Central Excise Act, 1944 would not lie to the High Court as the question framed by the Department is with regard to applicability of rate of Service Tax, then such an appeal where the rate of Service Tax is in dispute, then the statutory appeal would directly lie to the Apex Court under Section 35L(b) of the Act. The said two provisions of law Section 35G(1) and 35L(b) are extracted as under:

(3.) From the aforesaid two provisions, it is apparent that where the rate of service tax is in dispute then an appeal will lie directly to the Apex Court and not to the High Court. The present appeal has been filed under Section 35G(1) of the Act and, therefore, we are of the considered opinion that the appeal is not maintainable. The Division Bench of the Karnataka High Court in the case of Commissioner of Service Tax, Bangalore v. Prakash Air Freight Pvt. Ltd.,2011 23 STR 220 has held as under: