$~39 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 18^th December, 2024 + CEAC 4/2024, CM APPL. 36246/2024 & CM APPL. 36247/2024 THE COMMISSIONER OF CENTRAL TAX, CGST DELHI EAST .....Appellant Through: Mr. Shubham Tyagi, Advocate.

versus M/S JMD LIMITED .....Respondent Through: Mr. Prabhat Kumar Sahu, Adv.

CORAM:

JUSTICE PRATHIBA M. SINGH JUSTICE AMIT SHARMA Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. The present appeal has been filed by the Appellant under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the “Central Excise Act”), read with the Central Goods and Services Tax Act, 2017, challenging the impugned order dated 08 November, 2023 of (F.O.No.51530/2023) passed by the Customs, Excise, and Service Tax Appellate Tribunal (“CESTAT”) in Appeal No. 50472 of 2017. The impugned order set aside the Order-in-Original No. 20/2016-ST dated 06 December, 2016, wherein the Directorate General of Central Intelligence (Adjudication Cell) had imposed Service Tax amounting to Rs. 4,97,55,251/-, pursuant to the Show Cause Notice dated 14 October, 2014.

3. The case of the Respondent-Assessee was that it had developed projects at Ludhiana and Gurugram. Show Cause Notice dated 14th October, 2014 was issued by the Director General of Central Excise Intelligence raising Signature Not Verified Digitally Signed CEAC 4/2024 Page 1 of 9 a demand of service tax on the premise that the services provided by the Respondent-Assessee would constitute ‘commercial or industrial construction service’ as defined under Section 65 (25b) of the Finance Act, 1994 which is made taxable under Section 65 (105) of the said Finance Act.

4. This was disputed by the Respondent on the ground that the collaboration agreement was not for commercial or industrial construction service and these were composite work contracts involving transfer of goods and services. Thus, the services would qualify as ‘works contract’ in terms of the judgment of the Supreme Court in Commissioner of Central Excise versus Larsen and Toubro Ltd, 2015 (39) S.T.R. 913 (S.C.)

5. This stand of the Respondent was accepted by the CESTAT. Ld. Counsel for the Respondent challenges the maintainability of the present appeal before this Court on the ground that it involves an issue of taxability and such an appeal ought to be preferred before the Supreme Court.

6. The question, therefore, is whether the services rendered by the Respondent would be taxable or not. Since the issue is one of taxability, the decision of CESTAT would have to be assailed before the Supreme Court in view of Section 35L of the Central Excise Tax as the question of law involved is regarding the taxability of the said service. This is the settled position in law as per a series of decisions including a recent order of this bench in SERTA 2/2024 titled ‘Commissioner of CGST and Central Excise, Delhi v. M/s Spicejet Ltd.’ This Court dismissing a similar appeal preferred under Section 35G, from the decision of CESTAT, vide order dated 5^th December, 2024 observed as under:

“11. In view of Sections 35G and 35L of the Central Excise Act, 1944 which applies in respect of Service Tax, whenever issues of Signature Not Verified Digitally Signed CEAC 4/2024 Page 2 of 9 determining taxability are involved, the appeal would lie to the Supreme Court. The same has been also been settled in the series of decision commencing from Commissioner of Service Tax v. Ernst & Young Pvt. Ltd. and ors., 2014 (2) TMI 1133-Del wherein the Coordinate Bench of this Court had observed and held as under:

“9. Before we examine other judgments, it is important to examine the language of Section 35G in the bracketed portion which relates to matters in which appeal is to be filed before the Supreme Court. Section 35L of the F. Act is specific. The words/expression used is “determination of any question in relation to rate of duty or value for the purpose of assessment”. The word “any” and expression ‘i