The main legal point established in the judgment is that the dispute regarding classification falls within the phrase 'rate of duty', and therefore, the High Court had no jurisdiction to go into the same.

N. Kumar, J.—The revenue has preferred this appeal challenging the order passed by the Tribunal [2008 (9) S.T.R. 85 (T)] which has held that the activity carried on by the assessee i.e., technical assistance, technical information /transfer of technical know-how and consultancy comes within the category of "Consulting Engineer Service". This appeal was admitted to consider the following substantial question of law :-

(1) Whether in the facts and circumstances of case, the CESTAT, Bangalore was legal and correct in holding that transfer of technology, technical know-how and Technical Assistance, received by the respondent, would not come within the scope of taxable service, viz., 'Consulting Engineer Service', as defined under Section 65(31) of the Finance Act, 1994?

(2) Whether, in view of clarification issued by the Board vide Circular F. No. B.43/5/97-TRU, dated 2-7-1997 and Principal Bench's decision cited above, the aforesaid services would not come within the purview of Consulting Engineer Service and leviable to service tax?

(3) Whether the decisions relied by CESTAT do constitute res-integra and whether the ratio of those decisions could have any applicability to the present case?

2. From the aforesaid questions raised, it is clear that the dispute is whether the activity carried on by the company - the respondent, falls within the services of "Consulting Engineer"? In other words, it is a dispute regarding classification. If it falls within any one of those categories, then the question is 'Whether a foreign company is liable to pay service tax on such activity?'

3. This appeal is preferred under Section 35C of the Central Excise Act, 1944. As is clear from the wordings of the said section, an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal not being an order relating, among other things to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment.

4. The dispute regarding classification falls within the phrase "rate of duty" and therefore, this Court has no jurisdiction to go into the same. It is only the Apex Court under Section 35L of the Act which is competent to decide the aforesaid question of law. In that view of the matter, this appeal is rejected as not maintainable reserving liberty to the revenue to prefer an appeal to the Apex Court. High Court registry is directed to return the certified copies of the orders produced in this case to enable the revenue to prefer an appeal to the Apex Court.