TMI Blog2010 (8) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... territorial jurisdiction of the respondent-Commissioner. In a show-cause notice dated 12-12-2006, the department required the appellant to pay service tax of over Rs. 35.65 crores for the period from 1-7-2003 to 31-3-2006 in terms of section 65(105)(zzc) of the Finance Act, 1994 read with section 65(27) of the Act. The department found the above institutes, run by the society to be commercial training or coaching centres falling under section 65(27) and accordingly held certain activities of those institutes to be taxable service as defined under section 65(105)(zzc) of the Act. The aforesaid show-cause notice invoked the extended period of limitation under section 73(1)(a) of the Act on the ground that the appellant had mis-stated certain facts and suppressed certain facts with intent to evade payment of tax. The show-cause notice further proposed penalties, and also proposed to levy interest on tax under section 75 of the Act. It also proposed penalties on the noticee under sections 76 to 78 of the Act. The allegations in the show-cause notice were denied and the demands/proposals contained therein were contested. It was in adjudication of this dispute that the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was binding on the learned Commissioner, was refused to be followed on the invalid ground that the said decision had been appealed against by the department; (e) The learned Commissioner chose to follow a stay order of this Tribunal which did not contain any final decision on the substantive issue vide Hindustan Institute of Aeronautics v. CCE [Stay Order No. ST/76/2009, dated 16-2-2009]. (f) A major part of the demand of service tax is time-barred inasmuch as the appellant had not suppressed or misstated any material fact with intent to evade payment of tax so as to warrant invocation of the extended period of limitation against them. All the relevant facts were brought to the knowledge of the department in 2004-05, albeit in response to queries. However, the show-cause notice was issued as late as in 2006, for which delay there is no explanation. The learned Senior Counsel has referred to judicial authorities in support of the various points raised by him which we will be considering as and when the context may arise. 3. Countering the above arguments, the learned Jt. CDR has, at the outset, brought to our notice the Explanation added to sub-clause (zzc) of clause (105) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended law. The department was, therefore, constrained to institute enquiries and investigations into the modus operandi of the appellant and like institutions. As part of this endeavour, a letter was issued to the appellant on 12-5-2004 asking for details of all courses (degree, diploma etc.) and also particulars of recognition, if any, of such courses by the competent authorities. This letter also requested for income and expenditure accounts, balance-sheet etc. for the year 2002-03. As no response was received, the department issued a reminder in June 2004. On 27-5-2004, the appellant replied to the letter dated 12-5-2004 ibid but without furnishing any information. In this letter, they argued that they were not liable to pay service tax as commercial training or coaching centre . In another letter, the appellant provided information regarding numerous institutes run by them, including particulars of various certificate/diploma/degree courses offered by such institutes. In February 2005, in reply to another letter from the department, the appellant gave an account of various curriculum courses, vocational courses and sports training and claimed exemption from payment of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... training or pre-schooling (both of which were covered by the exclusion clause contained in the definition of commercial training or coaching centre ). The amount of service tax was quantified on the basis of the data furnished by the assessee in reply to the show-cause notice. 6. We find that the appellant has not made out a case on merits against the demand of service tax. They have not offered any resistance to the case putforth by the learned Jt. CDR based on the Explanation to section 65(105)(zzc) of the Act. The Explanation reads as under : Explanation. For the removal of doubts, it is hereby declared that the expression commercial training or coaching centre occurring in this sub-clause and in clauses (26), (27) and (90a) shall include any centre or institute, by whatever name called, where training or coaching is imparted for consideration, whether or not such centre or institute is registered as a trust or a society or similar other organization under any law for the time being in force and carrying on its activity with or without profit motive and the expression commercial training or coaching shall be construed accordingly. It stands virtually conceded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant furnished some information about their modus operandi. The spate of correspondences started in May 2004 and this information was forthcoming only as late as in January 2006. This information was needed for the department to determine tax liability, if any, of the appellant. The appellant still withheld information necessary for valuation of the taxable service. This information was furnished only in reply to the show-cause notice. In this scenario, we can hardly hold that the appellant did not suppress material facts before the department. In some of their letters, they argued that they were not liable to pay service tax. This happened during the course of investigations. The show-cause notice alleged suppression of facts with intent to evade payment of duty to invoke the extended period of limitation This allegation has not been successfully contested in this case. The appellant has not even attempted to show their bona fides, if any, in refraining from getting registered with the department, furnishing the requisite information to the department and complying with other statutory obligations including payment of service tax due to the revenue. For all these reasons, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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