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230 EXCISE LAW TIMES [ Vol. 372

pose of present controversy, we are inclined to ignore and not take
into consideration explanation 5 to Section 129D or sub-section (5)
to Section 35E. However, in spite of the said position, we do not
think that the decision in the case of Delhi Gymkhana Club Ltd. (Su-
pra) is required to be referred to a Larger Bench. Determination of
any question relating to rate of tax would necessarily directly and proxi-
mately involve the question, whether activity falls within the charging Sec-
tion and Service Tax is leviable on the said activity. The said determina-
tion is integral and an important injunct to the question of rate of tax. In
case Service Tax is not to be levied or imposed and cannot be im-
posed under the charging Section, no tax would be payable. The
said determination would be direct or proximate to the issue of rate
of tax, which will include nil tax, when no tax is chargeable.
19. If the reasoning given by the Revenue is to be accepted, it will
lead to anomaly and substantial confusion. All assessments neces-
sarily have to determine and decide the rate of tax after determining
and deciding whether or not activity is chargeable or tax can be lev-
ied. Assessments against the assessee would decide the rate of tax
applicable once it is held that the activity is chargeable to tax under
the F. Act. The words ‘rate of tax’ in relation to rate of tax would include
the question whether or not the activity is exigible to tax under a particu-
lar or specific provision. This will be a reasonable and appropriate interpre-
tation and will not cause or result in confusion or ambiguity regarding the
appellate forum. Line between exigibility and rate of tax as pro-
pounded can be rather thin and superfluous in the present statutory
context.”
(emphasis supplied)
It further records the fact that the Hon’ble Supreme Court has been entertaining
and deciding the appeals under the Act, relating to excisability of the goods and
in that regard made specific reference to the following decisions of the Supreme
Court :-
(a) Maltex (I) Pvt. Ltd. v. Commissioner of C. Ex., 2004 (165) E.L.T. 129.
(b) Commissioner of Central Excise v. Mahavir Aluminum, 2007 (212) E.L.T.
3.
(c) Nestle India Ltd. v. Commissioner of Central Excise, 2009 (235) E.L.T.
577.
We are in complete agreement with the reasons of the above Delhi High
Court decision in Ernst & Young Pvt. Ltd. (supra) to conclude that issues
of taxability and excisability from the orders of the Tribunal are appeala-
ble to the Hon’ble Supreme Court.
(e) It was also contended by the appellant Revenue that insertion of
sub-section (2) to Section 35L of the Act, that taxability/excisability
would be a rate of duty issue w.e.f. 6th August, 2014 would itself
imply that prior to 6th August, 2014, the issue of taxabil-
ity/excisability was appealable to the High Court. This submission
on behalf of the Revenue cannot be accepted in view of the various
decisions referred to hereinabove where the Courts have held that
issue of excisability of goods and taxability of services are appelable
to the Hon’ble Supreme Court even prior to the insertion of sub-
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