Service Taxability Appeals Lie To Supreme Court, Not High Court: Delhi High Court Reiterates

A Division Bench of Justices Nitin Wasudeo Sambre and Ajay Digpaul observed, “we have gone through the judgments cited by the counsel for the respondent in the matter of M/S Konark Exim Pvt. Ltd (referred supra). In the said matter, by relying on the judgment of this Court in the matter of Spicejet Ltd. (referred supra), it has been held that the issue in relation to taxability, an appeal before the High Court under Section 35G is not maintainable, and the only remedy available is an appeal to the Apex Court under Section 35L of the Central Excise Act, 1944.”

The Revenue had challenged an order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) which had ruled that the respondent-assessee is not liable to pay service tax on fee charged under the heads “Standard & Labelling (Registration and Labelling Fee)” and “Processing Fee,” as such services were sought to be categorised under “Technical Inspection and Certification Service”.

Assessee's counsel however raised a preliminary objection to the maintainability of the appeal. According to him, since the issue of taxability has been decided, the appeal lies to the Supreme Court, and an appeal under Section 35G of the said Act is not maintainable before the High Court for want of an express statutory remedy.

Reliance was placed on Commissioner of Service Tax Delhi v. Konark Exim Pvt. Ltd. and connected matters and Commissioner of CGST and Central Excise Delhi South v. Spicejet Ltd. (SERTA 2/2024).

Agreeing, the court dismissed the appeal as non-maintainable, with liberty to the Revenue to prefer an appeal under Section 35L before the Apex Court.

For Appellant: Atul Tripathi, Senior Standing Counsel with Advocates Akshay Sagar, Gaurav Mani Tripathi, Shubham Mishra & Madhav Anand

For Respondent: Advocate Preetam Singh