TMI Blog2013 (4) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Consequently, the assessee is entitled to relief. - Decided in favor of assessee. - Appeal No. 848 of 2008 - Final Order No. 56073/2013(PB) - Dated:- 11-4-2013 - Mr. Justice G. Raghuram and Mr. Sahab Singh, JJ. For the Appellant: Shri A. K. Batra, C.A. For the Respondent: Shri Govind Dixit, DR JUDGEMENT Per: Justice G. Raghuram: Heard Shri A. K. Batra, ld. C. A. on behalf of the appellant- assessee and the ld. DR Shri Govind Dixit on behalf of the respondent Revenue. 2. The adjudicating authority by the order dated 31.03.2008 confirmed service tax liability on the assessee for Rs. 12,75,834/-; assessed interest under Section 75; imposed penalty under Section 76; penalty under Section 77; and penalty equivalent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us challenging the order of the adjudicating authority as confirmed by the appellate authority. 4. The genesis of this avoidable lis could be traced to Circular No. 59/8/2003-ST dated 20.06.2003. The relevant legislative provision and the exemption granted vide Notification No. 12/2003-ST dated 20.06.2003 admit of no ambiguity. It is the admitted factual scenario that the assessee had provided the taxable service of Commercial Training and Coaching qua Section 65(165) (zzc) read with Section 65(26) and (27) of the Act. Section 67 of the Act enjoins that the gross amount charged by the taxable service provider / assessee on the taxable service. Accordingly, the value of the books or course material supplied by the assessees to its stu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected to service tax. 5. Appropos, the Board Circular dated 20.06.2003, Revenue assumes; the adjudicating authority concluded; the appellate Commissioner concerned; and the ld. DR reiterates before us that the exemption granted vide the Notification No. 12/2003-ST dated 20.06.2003 is inapplicable where a commercial training and coaching institute sells goods or material as part of its service of Commercial Training and Coaching Service which material does not answer the description of priced standard textbooks. 6. In our considered view, the clarification in the Board Circular dated 20.06.2003 is misconceived, clearly illegal and contrary to the statutory exemption Notification dated 20.06.2003. Where the legislature has spoken or in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vs. CCE, Aurangabad and which in turn rely on the earlier decision of this Tribunal in Pinnacle vs. CCE, Chandigarh reported in 2011 (24) STR 453 (Tri. Del.) to support its challenge to the concurrent orders of the primary and appellate authorities. These decisions are clearly in favour of the assessee and our analysis of the relevant provisions of the Act and the exemption Notification No. 12/2003-ST dated 20.06.2003, is fortified by these decisions. 8. Ld. DR would however persuade us to hold in favour of Revenue by relying upon the decision of this Tribunal in Sayaji Hotels Ltd. vs. CCE, Indore reported in 2011 (24) STR 177 (Tri. Del.) wherein the core issue was whether the exemption Notification No. 12/2003-ST dated 20.06.2003 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in para 6 of the judgment dealing with question No. 3 framed by the Tribunal, which is whether the term sale appearing in exemption Notification No. 12/02-ST dated 20.06.2003 must be considered as in Section 2(h) of the Central Excise Act, 1944 read with Section 65 (121) of the Finance Act, 1994 or the term would also include deemed sale, as defined by Article 366 (29A) (b) of the Constitution. While referring this issue for consideration to larger bench, an observation is recorded by the ld. DB that under the Finance Act, 1994 providing of service being event of levy, incidence of tax arises on the whole of value of service including materials used in providing such service. These observations are of no relevance to the issues arising i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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