TMI Blog2013 (6) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and if it is found that during the period of dispute, they were also conducting courses which resulted in award of degrees, diplomas, etc. recognized under the Indian laws, the appellant would be outside the purview of the definition of "commercial training or coaching centre", as the same stood during the period of dispute, and no service tax can be charged from them even in respect of the courses being conducted in collaboration with Cranfield University, U.K. - Case remanded back for de-novo decision. - Appeal No.ST/458/2012 - FINAL ORDER NO.55721/2013 - Dated:- 19-2-2013 - D N Panda And Rakesh Kumar, JJ. For the Appellant : Shri B L Narsimhan, Adv. For the Respondent : Shri Govind Dixit, AR Per: D N Panda: We do not find any substance in the adjudication order to appreciate whether scrutiny of the activities carried out by appellant was done to bring the appellant to the fold of law, even though we tried to repeatedly read pages 90 to 103. Therefore without wasting time of the Tribunal and without keeping the matter pending here, we send the matter back to the ld. Adjudicating Authority to re-examine the allegations in the show cause notice wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society. 2. In the result, both stay application and appeal are disposed remanding the matter to the ld. Adjudicating Authority. D N Panda, Member (J) Rakesh Kumar, Member (T) 3. While I fully agree with the order dictated by ld. Brother in the Open Court remanding the matter to the Adjudicating Authority for de novo adjudication, since I am of the view that while ordering remand in this matter certain points have to be specifically mentioned, I am recording a separate order. 4. The appellant are a society registered under Society Registration Act, 1860 and are engaged in organizing various courses in clinical medicine in collaboration with Cranfield University, U.K. The degree is awarded by Cranfield University, but the degree is not recognized under the Indian laws. The department was of the view that this activity of the appellant is covered by the definition of "commercial training or coaching service" as defined under Section 65(105)(zzc) read with Section 65 (26) and 65 (27) of the Finance Act, 1994 and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, be liable to pay service tax under Section 65 (105)(zzc) read with Section 65(26) 65 (27) of the Finance Act, 1994 only on the basis of retrospective amendment by Finance Act, 2010 to Section 65 (105)(zzc) by adding an explanation to this Section w.e.f. 1.7.2003 and thus, the bulk of the demand is time barred and for the same reason, penalty under Section 78 of the Finance Act is also not imposable. The points made in the summary of submissions in para 19 and 24 of the impugned order are reproduced below:- "1. These written submissions are being made in addition to and without prejudice to the submissions already made in the detailed reply and the oral submissions made during the personal hearing. 2. The present demand has been raised under 'commercial training or coaching service' in respect of educational courses conducted by the notice in collaboration with M/s. Cranfield University vide Agreement dated 2.3.2006. The basis for the demand is that the said courses are not recognized by the Indian Law. Assuming, without admitting that the courses offered by the notice in collaboration with Cranfield University are not recognized by law, it does not still lead to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide training for competitive examinations etc., such services rendered would be outside the scope of service tax." 7. It is an undisputed fact that the Noticee is an institute conducting courses for which the degrees are issued by various Indian Universities, duly recognized by law, it is not liable to pay service tax under commercial training and coaching service even in respect of courses conducted in collaboration with Canfield University, UK. The SCNs having accepted that the courses conducted by the Noticee in affiliation to Indian Universities are resulting in degrees recognized by law, can not at the same time allege that the other courses conducted by the Noticee in collaboration with Cranfield University, UK are liable to service tax under 'commercial training or coaching service'. Retrospective Amendments made to the definition of taxable service - No case for invoking extended period of limitation and for imposing penalties. 8. It is submitted that in the case of 'commercial training or coaching Services', retrospective amendments have been made in the definition of taxable service with effect from 01.07.2003 by the Finance Act, 2010. The said retrospective a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the time being in force". 6.1 Under Section 65(105)(zzc), a taxable service in respect of commercial training or coaching means any service provided to any person by a "commercial training or coaching centre" in relation to commercial training or coaching. 6.2 Only w.e.f. 1.5.11 Section 65(27) was amended and the amended definition of "commercial training or coaching centre" is as under:- "Commercial training or coaching centre means any institute or establishment providing commercial training or coaching for imparting skills or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes." 6.3 Thus w.e.f. 1.5.2011 the expression "does not include preschool coaching and training centre or any institute or establishment which issues any certificate or diploma or degree or any educational qualification recognized by law for the time being in force" was deleted from the definition of "commercial training or coaching centre." 7. Thus, it is clear that during the period of dispute, if an institute provided commercial coaching or training which resulted in award of a degree or educa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. In my view, this is the most important point in this case and in course of de novo proceedings, the Commissioner has to give his finding on the above plea of the appellant and if it is found that during the period of dispute, they were also conducting courses which resulted in award of degrees, diplomas, etc. recognized under the Indian laws, the appellant would be outside the purview of the definition of "commercial training or coaching centre", as the same stood during the period of dispute, and no service tax can be charged from them even in respect of the courses being conducted in collaboration with Cranfield University, U.K. 10. It is also seen that the appellant have pleaded that soon after entering into the agreement with Cranfield University in March, 2006 regarding the courses to be conducted with its collaboration, the appellant vide letter dated 5.6.2006 had sought clarification from DGST, Mumbai and the appellant's letter was forwarded by DGST to the service tax Commissionerate, Delhi and Mumbai for the guidance in the matter. There is no finding of the Commissioner as to whether this plea of the appellant is correct and if so, whether in view of this, and also in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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