Commissioner Of Service Tax, Delhi Iii vs. M/S Globe Civil Projects PVT LTD
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The Commissioner of Service Tax, Delhi III (Appellant) filed an appeal before the Delhi High Court against the Final Order No. 50356/2025 dated 3rd March, 2025, passed by the Customs Excise and Service Tax Appellate Tribunal (CESTAT). The CESTAT had upheld an Order-in-Original (O-I-O) dated 21st July, 2015, which determined that the construction of educational institutions was not liable for service tax. The O-I-O had confirmed a demand of Rs. 22,661/- out of a total demand of Rs. 15,90,60,547/- raised via a show cause notice dated 22nd April, 2014, and imposed service tax only on Goods Transport Agency Services along with interest. The Appellant had appealed the O-I-O to the CESTAT, which confirmed the Adjudicating Authority's decision. The Respondent, M/s Globe Civil Projects Pvt Ltd, raised a preliminary issue regarding the maintainability of the appeal before the High Court.
Held
The High Court held that the present appeal is not maintainable before it. Citing its own decision in SERTA 2/2024, the Court reiterated that even if the CESTAT has considered only a specific issue like limitation, the nature of the original order and the issues decided therein are crucial. In the present case, the original order dealt with the leviability of service tax, allowability of CENVAT credit, and imposition of penalty. Therefore, an appeal against the CESTAT's order would lie to the Supreme Court under Section 35L of the Central Excise Act, 1944, and not to the High Court. The Court dismissed the appeal as not maintainable, granting liberty to the Appellant to approach the Supreme Court and to seek benefit under Section 14 of the Limitation Act, 1963, for the period the appeal was pending before the High Court.
Key Issues
1. Whether the present appeal filed before the High Court is maintainable under Section 35G of the Central Excise Act, 1944, read with Section 83 of the Finance Act, 1994, in light of Section 35L of the Central Excise Act, 1944? The Appellant contended that the appeal is maintainable before the High Court. The Respondent, however, argued that the appeal is not maintainable before the High Court and ought to lie before the Supreme Court, citing Section 35L of the Central Excise Act, 1944. The High Court, in its previous decision in SERTA 2/2024 (Commissioner of CGST and Central Excise Delhi South v. M/s Spicejet Ltd.), had considered similar matters and past precedents including Commissioner of Service Tax v. Ernst & Young Pvt. Ltd. and Ors., Commissioner of Service Tax v. Delhi Gymkhana Club Ltd., Commissioner of Service Tax, Delhi v. Bharti Airtel Ltd., and ST Appl. No. 73/2012 titled ‘Commissioner of Service Tax v. Intertoll ICS CE Cons O & M Pvt. Ltd.’.
Sections Cited
Section 35G, Section 83, Section 35L
AI-generated summary — verify with the full judgment below
$~81 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 22nd May, 2025 + SERTA 7/2025 & CM APPL. 31776/2025 COMMISSIONER OF SERVICE TAX, DELHI III.....Appellant Through: Mr. Atul Tripathi, SSC. (M:9560018960) versus M/S GLOBE CIVIL PROJECTS PVT LTD .....Respondent Through: None. CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE RAJNEESH KUMAR GUPTA Prathiba M. Singh, J. (Oral)
This hearing has been done through hybrid mode. CM APPL.31776/2025 (for exemption)
Allowed, subject to all just exceptions. Application is disposed of.
The present appeal has been filed by the Appellant- Commissioner of Service Tax, Delhi III under Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994, inter alia, assailing Final Order No. 50356/2025 dated 3rd March, 2025 (hereinafter, ‘impugned order’) passed by Customs Excise and Service Tax Appellate Tribunal (hereinafter, ‘CESTAT’) in Service Tax Appeal No. 54328 of 2015. 4. The question that arises in the present appeal is whether the construction of institutions engaged in education is liable for service tax or SERTA 7/2025 not. The Order-in-Original dated 21st July, 2015 (hereinafter, ‘the O-I-O’) held that the said service would not be taxable and only confirmed the demand of Rs.22,661/- out of the total demand of Rs.15,90,60,547/- raised in show cause notice dated 22nd April, 2014. While passing the said O-I-O, the Adjudicating Authority imposed Service Tax only on Goods Transport Agency Services and further demanded appropriate interest of Rs.15,909/-.
Being aggrieved by the Order-in-Original dated 21st July, 2015, the Appellant Department filed an appeal before the CESTAT in Service Tax Appeal No. 54328 of 2015. However, the CESTAT vide the Impugned Order confirmed the decision of the Adjudicating Authority. Hence, the present appeal.
Ld. Counsel for the Respondent raises a question relating to the maintainability of the present appeal in view of Section 35G and 35L of the Central Excise Act, 1944, which applies in respect of service tax cases as well.
This Court had an occasion to consider a similar matter in SERTA 2/2024 titled ‘ Commissioner of CGST and Central Excise Delhi South v. M/s Spicejet Ltd.’ wherein this Court considered the following past decisions: ●Commissioner of Service Tax v. Ernst & Young Pvt. Ltd. and Ors., [2014 (2) TMI 1133-Del] ●Commissioner of Service Tax v. Delhi Gymkhana Club Ltd. [2009 (16) STR 129 (Del)] ●Commissioner of Service Tax, Delhi v. Bharti Airtel Ltd. [2013(30) S.T.R. 451 (Del.)] ●ST Appl. No. 73/2012 titled as ‘Commissioner of Service Tax v. Intertoll ICS CE Cons O & M Pvt. Ltd.’, decided vide order dated 16th SERTA 7/2025 December, 2022
In the said decision, the Court had observed as under:
“15. Even in the present case, though CESTAT has only considered the issue of limitation and the said issue was framed for consideration vide order dated 23rd January, 2024, the nature of the order, which is appealed, has to be considered. The original order passed by the Commissioner considered the question as to whether CENVAT credit was allowable or not, and whether penalty was imposable or not in terms of the applicable law. It also considered the leviability of service tax on excess baggage charges. Merely because CESTAT has only considered the issue of limitation, the present appeal cannot be filed in the High Court.
In view of the above decisions and considering the nature of issues that have been decided vide the order dated 31st March, 2016, passed by the Commissioner of Service Tax as also the impugned order of the CESTAT dated 3rd July, 2023, this Court is of the opinion that an appeal against the said impugned order would lie, in terms of Section 35L of the Central Excise Act, 1944, to the Hon’ble Supreme Court.
Therefore, the present appeal is dismissed as not maintainable.
Needless to state that the dismissal of the present appeal would not preclude the Appellant from availing such remedies as may be available in accordance with law and seeking benefit under Section 14 of the Limitation Act, 1963, for the period during which the present appeal was pending before this Court.
The present appeal is disposed of in the aforesaid terms.” SERTA 7/2025 9. In view of the above, the present appeal would not be maintainable before this Court. Accordingly, the appeal is dismissed with liberty to the Appellant to approach the Hon’ble Supreme Court. PRATHIBA M. SINGH, J. RAJNEESH KUMAR GUPTA, J. MAY 22, 2025 dj/ss
Reproduced from the public record of the Delhi High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.