Page 183 - ELT_2nd_15th April 2020_Vol 372_Part

2020 ] COMMISSIONER CENTRAL EXCISE, MUMBAI-V v. RELIANCE MEDIA WORKS LTD. 229

above is in the context of it being classifiable under the Finance Act, 1994
or the Act r/w the Tariff.
(d) On the other hand, we note that all the decisions relied upon by the
respondent and cited hereinabove have held that the issue of excis-
ability, namely, manufacture taking place or not, are all issues relat-
ing to rate of duty. Thus, holding that an appeal on the issue of ex-
cisability/taxability from the orders of the Tribunal would be to the
Hon’ble Supreme Court. In fact, the Kerala High Court in Kerala
State Beverages (supra) has held that whether any goods are excisa-
ble or not, will fall within the exclusion provided under Section
35G(1) of the Act. It further noted that this distinction between
Hon’ble Supreme Court and the High Court seems to be clearly in-
tended to avoid conflict of views between High Courts on a ques-
tion having all India impact. It is pointed out to us that except in the
decision rendered by the Andra Pradesh High Court in Sriram Re-
frigeration (supra), from which an appeal to the Supreme Court has
been admitted on 11th March, 2011, 2018 (362) E.L.T. A108, all the
other decisions are final. We find that this Court in Greatship (India)
Ltd. (supra) has observed in Para 20 thereof that this Court in Com-
missioner of Central Excise and Service Tax v. M/s. Credit Suisse Services
(I) Pvt. Ltd., 2015 (38) S.T.R. 473 had held the issue of the taxability
of the services and the rate at which such services would be taxed
was required to be considered by the Hon’ble Supreme Court and
not by this Court. It is noteworthy that the Revenue has not been
able to show a single decision of any Court (including this Court)
except the decision in Global Vectra Helicorp (supra) to support the
contention that the issue of excisability/taxability can be enter-
tained by the High Court. We shall deal with the above decision of
this Court in Global Vectra Helicorp (supra) separately a little later.
During the course of hearing, our attention was also drawn to the
decision of the Delhi High Court in Commissioner of Sales Tax v.
Ernst & Young Pvt. Ltd., 2014 (34) S.T.R. 3. In the above case, the
Court was concerned with the issue whether the services rendered
by the assessee therein were chargeable to tax under the Finance
Act, 1994. The assessee therein raised a preliminary objection about
the jurisdiction of the High Court to entertain the Revenue’s appeal
on the above dispute. The Delhi High Court, while following the
decision of the Hon’ble Supreme Court in Navin Chemicals (supra),
in particular Para 11 thereof, held that the orders of the Tribunal de-
ciding the issue of taxability would be appealable to the Supreme
Court. It noted in Paragraphs 18 and 19 as follows :-
“18. On reading of the said paragraph, it is lucid and clear that
Supreme Court had stated that questions relating to rate of duty
and valuation for the purpose of assessment as defined in the ex-
planation to sub-section (5) to Section 129D of the Customs Act,
would include question relating to classification of goods under the
tariff, whether or not they are covered by exemption notification;
whether value for the purpose of assessment should be enhanced or
reduced etc. It was further observed that statutory definition ac-
cords to the meaning given to the expression above. For the pur-
EXCISE LAW TIMES  15th April 2020  199