TMI Blog2010 (5) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit and stay of recovery in respect of the amounts of service tax and penalty and the other for out-of-turn disposal of stay application. Now that the stay application itself arises for hearing, the other application is infructuous and is hence dismissed. We have heard both sides in the stay application. 2. Waiver and stay have been sought in respect of service tax of over Rs. 4 crores along with education cess of over Rs. 9.6 lakhs for the period 1-7-2003 to 30-6-2008 as also in respect of equal amount of penalty. The demand of service tax is Under Section 65(105)(zzc) of the Finance Act, 1994, which defines 'taxable service' as the service provided/to be provided to any person by a commercial centre or coaching centre in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wheresoever shall be applied solely for the attainment and promotion of the objects of the trust set forth hereinabove. It is further provided that no portion of any such income, surplus or profit derived and/or earned shall be paid or transferred directry or indirectly by way of dividend, bonus or otherwise howsoever by way of profit either to the settler or the Trustees of these presents provided, however, that nothing herein shall prevent any payment in good faith of remuneration to any officer or servant of the Trust or to any person including trustees in return for any services rendered to the Trust. On the strength of these provisions of the Trust Deed, the learned counsel for the appellant has argued that the Institute (Indian Instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in such activity would come within the purview of 'commercial training or coaching centre' and consequently, the activity would attract levy of service tax under Section 65(105)(zzc). In this connection, the learned JCDR has relied on the Board's circular No. 107/01/2009-S.T. dated 28-1-2009. In answer to a query from the Bench, the learned JCDR submits that a decision of this Tribunal similar to Great Lakes Institute (supra) and Ahmedabad Management (supra) is under challenge before the Supreme Court. He submits that the Civil Appeal filed by the department against Indian School of Business v. CC E, Hyderabad-IV - 2010 (17) S.T.R. 83 (Tri.-Bang.) stands admitted. He cannot, however, say for certain whether the department could obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in Indian School of Business (supra), wherein both the above decisions were relied on, is presently under challenge before the apex court. In any case, any interim stay order of the apex court in the case of Indian School of Business has not been cited before us. 6. In the impugned order, the learned Commissioner has not considered the Tribunal's decision in Great Lakes Institute case cited by the assessee. She has chosen to follow the Board's circular dated 28-1-2009 in preference to the Tribunal's decision. As rightly pointed out by the learned counsel, in a conflict between Tribunal's decision and Board's circular, the former would have overriding effect. But this aspect appears to have been overlooked by the learned Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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