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2023 (11) TMI 170 - AT - Service TaxLevy of service tax - commercial training or coaching’ services - imparting education in the field of Postgraduate Courses in ‘clinical research’ in India, entered into collaboration with Cranfield University, UK - Input credit of the expenses incurred as per CENVAT Credit Rules, 2004 - Deduction of the value of study material supplied - Cum-tax benefit under section 67 of the Finance Act - ex-parte order - violation of principles of natural justice - Penalty under section 76 and 77 of the Finance Act and interest - HELD THAT:- The ‘commercial training or coaching’ means any training or coaching provided by a commercial training or coaching centre. A ‘commercial training or coaching centre’ has been defined, prior to 30.04.2011, to mean any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field with or without issuance of a certificate and includes coaching or tutorial classes, but does not include 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. The definition, as amended w.e.f. 01.05.2011, deletes only that latter portion not included in the definition of ‘commercial training or coaching centre’. The Commissioner has recorded a finding, after careful examination of the activities undertaken by the Indian Institute that it was providing training or coaching for a consideration. There is no error in this finding as indeed the Indian Institute was engaged in imparting education in the field of Post Graduate courses in ‘clinical research’ for a consideration - The contention of the learned Chartered Accountant for the appellant that since the Indian Institute is a registered society and is working without profit, no taxable service can be said to have been provided cannot also be accepted. Thus, if the Indian Institute itself did not appear before the Commissioner despite ample opportunities having been provided, it cannot be permitted to raise any grievance about violation of the principles of natural justice. Penalty under section 76 and 77 of the Finance Act - HELD THAT:- The contention of the learned Chartered Accountant for the appellant that since there was no malafide intent to evade payment of service tax, penalty under section 76 of the Finance Act should be set aside, cannot also be accepted - The contention of the learned Chartered Accountant for the appellant that penalty under section 77 of the Finance Act should be set aside also does not deserve acceptance. In the end, learned Chartered Accountant submitted that the Indian Institute would be entitled to the following benefits out of the total demand that has been confirmed: (i) Input credit of the expenses incurred as per CENVAT credit; (ii) Deduction of the value of study material supplied; and (iii) Cum-tax benefit under section 67 of the Finance Act - This matter has not been examined by the Commissioner. In the facts and circumstances of the case, it would be appropriate to remit the matter to the Commissioner to decide this aspect only, namely as to whether the Indian Institute would be entitled to the aforesaid benefits out of the total demand that has been confirmed. While confirming the findings recorded by the Commissioner, the matter is remitted to the Commissioner to decide whether the Indian Institute would be entitled to the aforesaid benefit from out of the demand that has been confirmed - appeal allowed by way of remand.
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