9911796707
TMI Blog2013 (6) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 (253) ELT (SC) is property carried out. For convenience of reading the guidelines issued by the Apex Court is reproduced below:- "7. These guidelines are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case:- (a) It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case; It should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order. (b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion. (c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader. (d) Appropriate care should be taken not to load it with all legal knowledge on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1-5/GB/2012 dated 3.1.2012 by which the Commissioner confirmed the service tax demands totalling Rs. 11,09,44,488/- along with interest in respect of "Commercial training or coaching service" alleged to have been provided by the Appellant and besides this, imposed penalties under Section 76, 77 and 78 of the Finance Act, 1994. By the same order, service tax demand of Rs. 41,7,562 along with interest was also confirmed in respect of IPR services alleged to have been received by the appellant from foreign service providers. 5. One of the plea made by the appellant before the Commissioner, as recorded at Sl.No.3 of the "Summary of submissions" in para 19 of the impugned adjudication order, is that the appellant apart from the courses in collaboration with Cranfield University, U.K., had also been conducting other educational courses in affiliation with Guru Jambheshwar University, Hissar; Dr. MGR Education and Research Institute (Deemed University) and PRIST University, Thanjavur and these courses result in award of degrees/diploma which are duly recognized by the University Grant Commission and, therefore, the appellant go out of the definition of "commercial training or coaching c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation with the following Universities in India":- A. Guru Jambeshwar University, Hisar B. Dr. M.G.R. Education and Research Institute(Deemed university). C. PRIST University, Thanjavur." 4. It is submitted that the aforementioned Indian Universities are universities within the meaning of the UGC Act and are duly recognized by the UGC. Copies of the degrees and marksheets issued by these Universities in respect of the students, who successfully completed the courses conducted by the notice, are collectively enclosed as Annexure-I. 5. The above fact that the courses conducted by the notice in affiliation with the aforementioned Indian Universities is also not disputed by the department in the SCNs. In fact, the fee collected by the noticee for the courses conducted in collaboration with these Indian Universities have been specifically excluded for the purpose of working out service tax liability. The SCNs have proposed to demand service tax only the fee collected by the notice for courses conducted in collaboration with the Cranfield University ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entre'. 9. Prior to this amendment, the Hon'ble CESTAT in various judgments had decided that an institute or establishment which operates with not for profit objectives will not come under the definition of 'commercial training or coaching institute'. The Noticee is a non-profit society established solely for educational purposes. Thus, the Noticee in any case cannot be said to covered by the definition of 'commercial training or coaching centre' prior to the retrospective amendment made by the Finance Act, 2010. 10. Without prejudice to the other submissions on merits, it is submitted that service tax under 'commercial training or coaching centre service' can be said be levied on the Noticee only by way of the retrospective amendment. In such a scenario, the Noticee can not be said to be guilty of any fraud or suppression or misrepresentation with intention to evade payment of service tax. Therefore, the proposal to invoke extended period of limitation is in any case not sustainable in the present case. Further, the proposal to impose penalties on the Noticee is also not sustainable for the same reason. In any case, as there was reasonable cause on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce, the same was excluded from the purview of the term "commercial training or coaching centre" even if the institute provided also commercial coaching or training which resulted in issuance of certificates, degree, etc. not recognized by law, no service tax could be charged on such commercial coaching or training. This is what the Board has clarified in its Circular No.59/81/03/GT dated 20.06.2003, the relevant portion of which is reproduced below- "Whether service tax is leviable on institutes providing commercial coaching in addition to recognized degree courses:- Some institutes like colleges apart from imparting education for obtaining recognized degree, diploma, certificate, also impart training for competitive examination, various entrance tests, etc. It is clarified that by definition such institutes or establishments which issue a certificate, diploma or degree recognized by law are outside the purview of commercial or coaching centre. Thus, even if such institutions are establishments provide training for competitive examinations, etc. such services rendered would be outside the scope of service tax." 8. In his case, if in addition to conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the "Summary of Submissions' in para 19 of the impugned order, the Appellant can be said to have suppressed the relevant information from the department so as to invoke extended limitation period under proviso to Section 73(1) of Finance Act, 1994 and also imposition of penalty under Section 78. In deciding this question, the Commissioner must also give his finding as to whether the Apex Court's judgements in the cases of Chemphar Drugs & Liniments reported in 1989 (40) ELT 276 (SC), Pushpam Pharmaceuticals Company reported in 1995 (78) ELT 401 (SC) and Continental Foundation Joint Venture reported in 2007 (216) ELT 177 (SC) , with regard to interpretation of the expression ''suppression of facts" in proviso to Section 11 A(1) of the Central Excise Act, 1944 are applicable to this case and whether in view of these judgements the longer limitation period would be applicable and penalty under Section 78 would be imposable. 11. There is no finding in the impugned order with regard to Appellant's Appellant's service tax liability in respect of IPR Service alleged to have been received by them from foreign service provider but still the service tax demand of Rs.41,7,562/- has been conf ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
