IMPORTANT POINT
An appeal under Section 117 of the Central Goods and Service Tax Act is not maintainable if the Appellate Tribunal has not been constituted, and such matters must be taken to the Supreme Court under Section 35L of the Central Excise Act.

JUDGMENT :

NELSON SAILO, J.

1. Heard Mr. Johny L. Tochhawng, learned counsel for the appellant and Mr. Tarun Chatterjee, learned counsel appearing for the respondent.

2. This appeal is preferred under Section 117 of the Central Goods and Service Tax Act, 2017 (Act of 2017) against the final Order No. 76779-76783/2023 dated 19.09.2023 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata in Service Tax Appeal No. 05/2011 filed by the appellant against the Order-in-Original No. 05/Commissioner/ST/2010 dated 27.08.2010.

3. Mr. Tarun Chatterjee, learned counsel for the respondent submits that the instant appeal filed under Section 117 of the Act of 2017 is not maintainable and that an appeal would lie only against the order passed by the Appellate Tribunal under Section 113 of the same Act in appeals filed under Section 107 or revision filed under Section 108 of the said Act. He submits that since the Appellate Tribunal under the Act of 2017 has not been constituted, an appeal would not lie under Section 117 before the High Court. He submits that in fact, appeal would lie before the Supreme Court of India under Section 35(L) of the Central Excise Act, 1944 in view of the fact that the issue to be considered in the instant case is with regard to taxability of the services rendered by the respondent. Therefore, the same is squarely covered by Section 35L (1)(b) of the Act of 1944. In support of his submission, he relies upon the decision rendered by a Co-ordinate Bench of this Court in Commissioner of CGST, Guwahati vs. Oil India Ltd. 2023 (385) E.L.T. 834 (Gau) : 2023 (8) CENTAX 43 (Gau).

4. Mr. Johny L Tochhawng, learned counsel submits that the issue involved in the instant case is that the respondent had rendered services, which is taxable as per the definition under Section 65(31) of Chapter-V of the Finance Act, 1994. The activities of the respondent, therefore, clearly falls under the category of Consulting Engineering Services as also provided under the show-cause Notice dated 22.12.2004 and therefore, the decision of the Commissioner of Customs as well as CESTAT can be challenged in appeal before the High Court. The learned counsel therefore submits that the appeal is maintainable and should be heard on merits.

5. We have heard the submissions made by the learned counsels for the rival parties and we have perused the materials available on record.

6. Before entering into the merits of the case what is required to be addressed is with regard to the maintainability of the appeal itself since the respondent has raised an objection in this regard. Under Section 117 of the Act of 2017, an appeal lies to the High Court against any order passed by the Appellate Tribunal and the appeal may be admitted by the High Court subject to there being satisfaction that the case involves substantial question of law. The definition of Appellate Tribunal is found under Section 2(9) of the Act of 2017 which again refers to Section 109 of the same Act. Section 109 provides for constitution of Appellate Tribunal and Benches thereof by the Government to be known as Goods and Services Tax Appellate Tribunal for hearing appeals under the order passed by the Appellate Authority or the Revisional Authority. No material has been placed before us to show that an Appellate Tribunal had been constituted in terms of the said provision. There also cannot be any dispute to the fact that an appeal to this Court under Section 117 would have to be an order passed by the Appellate Tribunal under Section 113 of the Act of 2017.

7. Section 35L of the Central Excise Act, 1944 is a provision for filing an appeal to the Supreme Court. Section 35L of the Act of 1944 may be abstracted below for ready perusal:

“35L. Appeal to Supreme Court:

(1) An appeal shall lie to the Supreme Court from:

(a) any judgment of the High Court delivered:

(i) in an appeal made under section 35G.

(ii) on a reference made under section 35G by the Appellate Tribunal before the