Commissioner Of Service Tax vs. Intertoll Ics Ce Cons O & M PVT LTD
Original PDF →Facts
The Commissioner of Service Tax (Petitioner) filed an appeal before the Delhi High Court against an order dated 23.12.2011 passed by the Customs Excise and Service Tax Appellate Tribunal (CESTAT). The CESTAT's order was in Service Tax Appeal No. 1167/2011 concerning the respondent, Intertoll ICS CE Cons O & M Pvt Ltd. The High Court had framed two questions for consideration regarding whether the respondent was rendering business auxiliary service and if so, whether it was liable to pay service tax on amounts received from the National Highway Authority of India under a contract dated 08.08.2002. The Petitioner's counsel pointed out that the appeal was not maintainable before the High Court as it involved an issue of chargeability of the activity to service tax.
Held
The Court held that the appeal was not maintainable before the Delhi High Court. The Petitioner's counsel conceded that it is well-settled law that when the question of chargeability of an activity to service tax is concerned, the appeal would lie to the Supreme Court and not the High Court. The Petitioner's counsel also expressed an apprehension regarding the pecuniary limit for filing appeals before the Supreme Court. The Court stated that it was not called upon to examine the appellant's policy of filing appeals. Since there was no dispute that the present appeal was not maintainable before the High Court, it was dismissed. The dismissal was without prejudice to the appellant availing such remedies as may be available in accordance with law. The Court did not decide the two framed questions of law.
Key Issues
1. Whether the respondent is rendering any business of auxiliary service within the meaning of Section 65(19) read with Section 65(105)(zzb) of the Finance Act, 1994? The Petitioner argued that the appeal was not maintainable before the High Court as it raised an issue regarding the chargeability of the activity in question to service tax. The Petitioner relied on the decision of a Coordinate Bench in Principal Commissioner Goods and Service Tax South v. Premium Real-estate Developers, which cited several other High Court decisions and Circular No. 334/15/2014-TRU of the Central Board of Excise and Customs. The Petitioner contended that where the lis pertains to chargeability, the appeal would lie to the Supreme Court and not the High Court. The Respondent's arguments were not recorded in the judgment.
Sections Cited
Section 65(19), Section 65(105)(zzb), Section 83, Section 35G, Section 35L(2)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
O R D E R %
2022
The appellant has filed the present appeal impugning an order dated 23.12.2011, passed by the Customs Excise and Service Tax Appellate Tribunal (CESTAT) in Service Tax Appeal No.1167/2011. 2. By an order dated 16.01.2013, this Court had framed the following questions for consideration: “(1) Whether the respondent is rendering any business of auxiliary service within the meaning of Section 65(19) read with Section 65(105)(zzb) of the Finance Act, 1994?
(2) If the answer to the first question is in the affirmative, whether the respondent is liable to pay service tax on the amounts received by it from National Highway Authority of India under the contract dated 08.08.2002 between them?”
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/06/2026 at 18:42:19
The learned counsel appearing for the petitioner points out that the present appeal is not maintainable since it raises an issue regarding chargeability of the activity in question. He relies on the decision of the Coordinate Bench of this Court in Principal Commissioner Goods and Service Tax South v. Premium Real-estate Developers: 2020 81 GSTR 424 (Delhi). Paragraph 15 of the said decision reads as under:
“15. It stands authoritatively held by this Court, in catena of pronouncements, including Commissioner of Service Tax v. Gecas Services India Pvt. Ltd. 2015 (39) STR 980 (Del), Commissioner of Service Tax, New Delhi v. Menon Associates 2017 (49) STR 284 (Del), Commissioner of Service Tax v. Amadeus India Pvt. Ltd. 2015 (39) STR 973 (Del) and Commissioner of Service Tax, Delhi v. Transcorp International Ltd. 2016 (41) STR 822 (Del), relying on Section 83 of the Finance Act read with Sections 35G and 35L(2) of the Central Excise Act, 1944, that, where the lis pertains to chargeability of the activity, conducted by the assessee, to service tax, no appeal would be maintainable before this Court, and that the appeal would lie, instead, to the Supreme Court. This position, it has been noted in the said decisions, also stands clarified by Circular No. 334/15/2014-TRU, dated 10th July, 2014 of the Central Board of Excise and Customs”.
The learned counsel appearing for the appellant also fairly states that it is now well settled that when the question of chargeability of an activity is concerned – such as in this case – appeal would lie to the Supreme Court and would not be maintainable before this court. She however expresses an apprehension that the appellant may be disabled from filing an appeal before the Supreme Court in view of the internal instructions regarding the pecuniary limit for filing such appeals.
This Court is not called upon to examine the appellant’s policy of This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/06/2026 at 18:42:19
filing appeals. Since, there is no dispute that the present appeal is not maintainable, the same is dismissed.
Needless to state that dismissal of the appeal would not preclude the appellant from availing such remedies as may be available in accordance with law.
VIBHU BAKHRU, J
PURUSHAINDRA KUMAR KAURAV, J DECEMBER 16, 2022/MJ
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/06/2026 at 18:42:19
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.