TMI Blog2013 (1) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Administrative Staff College (supra) has been upheld by the Apex Court as reported at Commissioner v. Administrative Staff College of India [2010 (3) TMI 906 - SUPREME COURT OF INDIA] & Ahmedabad Management Association has been set aside by the Apex Court and remanded for denovo consideration in the light of the retrospective amendment made by Finance Act, 2010 as reported at Commissioner v. Ahmedabad Management Association (2010 (10) TMI 908 - SUPREME COURT OF INDIA). Having considered all the aspects above prima facie view that the word "commercial" in definitions at section 65 (26) and 65 (27) and 65 (105) (zzzc) cannot be considered to be superfluous and the explanation added by Finance Act, 2010 may not be a sufficient reason to take a view that the impugned training to be a "commercial training". As substantial part of the demand is confirmed invoking extended period of five years and such extended period may not be available while demanding short paid taxes on account of such interpretational issues - waiver of requirement of pre-deposit of dues for admission of the appeal and there shall be stay on collection of dues arising from the impugned order during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial" in the definitions at section 65 (26) and 65 (27). He argues that if any training is provided free of cost it would not have been taxable any way. So the word "commercial" could not be for the purpose of specifying that the training is not organized free of cost. He relies on the circular No. 9/8/2003-ST dated 20-06-03 issued at the time of introducing the entry 65 (105) (zzc) explaining the scope of the entries to be taxed. The said circular read as under: "2.2 Vocational training and coaching Centers : 2.2.1 Commercial coaching and training services provided by institutes that prepare applicants for Board examinations and competitive exams like entrance examinations for Indian Institute of Technology-Joint Entrance Examinations/Pre Medical Tests, Civil Services exams etc. are chargeable to service tax. However, services in relation to commercial coaching and training, provided by, - (a) vocational training institute; (b) computer training institute; and (c) recreational training institute; have been exempted from service tax w.e.f. 1st July, 2003 vide Notification No.9/2003-ST dated 20th June 2003. Therefore, vocational coachin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s imparted for consideration, whether or not such centre or institute is registered as a trust or a society or similar other organisation 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;' 9. After the insertion of the above explanation all the arguments about the nature of the constitution of the person providing service and whether the activity was with profit motive or not has become irrelevant and any training given for a consideration should be taxed so long as it is not exempted otherwise. The training provided by the appellant is for consideration and it is in the field of commerce and therefore the appellants are liable to pay service tax. 10. We have considered arguments on both sides. The dispute before us is the import of the word "commercial" used in sections 65 (26), 65 (27) and 65 (105) (zzc) of Finance Act, 1994. These provisions read as under: "(26) "commercial training or coaching" means any training or coaching provided by a commercial training or coaching centre;" "(27) "commercial training or coaching centre" mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but with different legal status like a private limited company, a trust, co-operative society etc. But this amendment does not appear to make all trainings on the same footing and to make the purpose of the training, the manner in which it is organized and the persons who can avail of the service itself irrelevant leading to a situation where the word "commercial" used in the above definitions become superfluous. 13. Further the decisions of the Tribunal in the cases cited by the Counsel for appellant were not given for the only reason that the legal person owning the institute did not have profit motives. The Tribunal was of the view that a professional training cannot be considered as "commercial training". Para 12 in the decision of Administrative Staff College Of India (Supra) and para of 4.10 of the decision of Ahmedabad Management Association (supra) are particularly relevant. Extract from the decision of Administrative Staff College Of India "12. On a very careful consideration of the matter, we find that the appellants are conducting various programmes for people who are already in service in a very professional manner in ail fields of administration and mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... job or acquire skills which are required for competing in an examination. The programmes conducted by the AMA do not come under the above categories but are in the nature of continuing education. Whether it is the candidates who participate in the programme or the organization conducting the programme, the objective is professional development or/and creating an awareness of the latest developments etc. but not to prepare the candidates or not to impart skills for a particular job or for a particular examination. There is no definite objective which is measurable. In fact the exemption notification has been issued in respect of certain vocational training programmes since they are classifiable as commercial training or coaching. Therefore what is required to be examined is whether the training programmes conducted by AMA can be called as commercial training or coaching. The answer is no in view of the following: (i) AMA is not a commercial concern. (ii) The purpose of the training is not commercial. (iii) The objective of the AMA in conducting the programme is not commercial and whatever extra income is earned, it is flowed back into the association an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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