TMI Blog2015 (6) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... so confirmed that the amount was collected from the different students of different colleges who underwent coaching of JE-IIT, EAMCET, etc in different branches of the Appellant Society situated in Andhra Pradesh and other places of India. It is clearly evident from the facts of the case that the coaching classes were conducted in different campuses, separate fees and totally independent and had no nexus with the intermediate courses of the colleges Appellants were aware of their tax liability as they have registered in Kota, Rajasthan and paid Service Tax. There is no logic or rational on different stand taken by the Appellant in Kota and Andhra Pradesh. The Appellants are not entitled to a bonafide belief that they are not liable to pay Service Tax. - the finding of the Adjudicating Authority that the Appellant tried to mislead the department by stating that their committee is non-commercial nature with an intention to evade payment of tax, cannot be accepted. It cannot be said that there was a suppression of facts with intent to evade payment tax. In any event, the difference of opinion on the leviability of Service Tax in the present case would also support the bonafide beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing education for 11 th and 12 th Standard students, the Appellants Society is recognized by the Andhra Pradesh Intermediate Board. 4. The appellant's society introduced optional stream of courses in the year 1991 for students undergoing intermediate courses in their junior colleges. These courses are integrated into the syllabus of the First Second year of the intermediate course. These optional courses are offered to students securing a high percentage of marks in their 10 th Standard First Year Intermediate. The said optional courses are offered so as to enable the students to appear and score high in various entrance exams such as IIT-JEE, Engineering and Medical Common Entrance Test (EAMCET) etc. The appellant's society follows the guidelines for the syllabus prescribed by the A.P. Intermediate Board, conducts regular internal assessments, follows a standard admission procedure and imparts education in various subjects under the Intermediate Board. Copies of Prospectus/ Academic organizer for the years 2003 to 2007 enclosed to the paper-book. 5. The various courses offered by the appellant's society to their students towards intermediate in the Juni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 78 of the Act. 9. The gist of the Order-in-Original is as under: Amount of service tax confirmed: ₹ 85,38,34,876/-; Penalty of ₹ 200 per day or 2% of the tax, whichever is higher u/s 76; Penalty of ₹ 150 crores u/s 78 plus penalty of ₹ 1000 u/s 77. While appellant has appealed against the entire Order, the department has appealed against the reduction of the service tax demand from ₹ 87,49,20,368/- to ₹ 85,38,34,876/- accepting the figures, furnished by SCEC at the time of adjudication without proper verification. 10. The texts of the relevant provisions of the Finance Act, 1994, which have a bearing on the appeals are as follows: Section 65 (26) - commercial training or coaching means any training or coaching provided by a commercial training or coaching centre; Section 65 (27) - commercial training or coaching centre means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than sports, with or without issuance of a certificate and includes coaching or tutorial classes but does not include pre-school coaching and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation, the activities undertaken by the appellant was not at all covered by the definition. Before we examine this submission, we feel that it would be appropriate to examine the definition without getting affected by the subsequent amendments, etc. This is in view of the submission made by the learned Special Consultant that commercial and training center is a coined expression and the meaning always mean the same and had the same meaning which was made clear by introduction of explanation. 12. The appellant had interpreted the definition in their letter dated 26.8.2003 written to the Superintendent of Central Excise, Service Tax Range, Vijayawada. According to them, Service tax has not defined the word commercial hence the meaning of the word commercial has to be taken in its natural meaning. The word commercial means an act with the motive of profit making. Shri Chaitanya Education Committee being a charitable entity has no profit motive and hence the coaching or training provided by them cannot be called as commercial training or coaching . This was also one of the supporting point considered while deciding the service tax demand in respect of Grate Lakes Management Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble trust and does not have any profit motive. Therefore if we accept the view canvassed by the appellant's before the original authorities and before the investigation was taken up, separate terms used in the definition such as any person, the name of provision, the type of the company, any person, commercial concern, have to be ignored for determining a liability of a person to pay service tax. Therefore what we have to examine is whether the meaning entertained by the appellants for the words commercial training or coaching center really emerges from the definition or not. 14. According to the definition, commercial training or coaching centre means any institute or establishment providing commercial training or coaching. Such commercial training or coaching has to be for imparting skill or knowledge or lessons on any subject or field other than sports. The definition makes it clear that whether a certificate has been issued or not is not relevant for this purpose. Further, it also specifically provides that coaching or tutorial classes are included thereby explaining the scope of definition. What the appellants are doing is coaching for competitive examination and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt service provide free without consideration does not attract any service tax liability since the rate of service tax is on the amount received as consideration for provision of service. Commercial training or coaching does not refer or cannot be said to be relating to the training or coaching provided only by a commercial concern in view of the above observations. 16. This was made clear by the Government in the Circular issued explaining the changes brought about in relation to service tax in the budget of 2010-11 vide DOFNo.334/1/2010-TRU dated 26.2.2010. The relevant paragraphs 6.1 and 6.2 are reproduced below. 6.1 Commercial training and coaching service was introduced in Budget 2003 with a view to tax the mushrooming coaching institutes and training centres which either provide coaching classes for examinations or unrecognized courses in various areas such as, management, marketing, engineering, etc. The schools, institutes, colleges and universities providing courses that lead to award of recognized diplomas/degrees and sports education were kept out of tax net. These include universities created under a Central or State Act, institutes recognized by UGC as universi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of commerce is used, it would not mean that the nature of training provided is not commercial unless it is provided by a commercial concern or by a person with motive of profit. 18. Therefore in our opinion, the observation made by the CBEC in the Circular that the explanation only clarifies and makes it clear that the intention was to levy service tax on commercial training or coaching provided by any organization including charitable trust and organizations without profit motive so long as such training or coaching was covered by the definition. Therefore, we agree with the submission made by the special consultant that the legislative intent and the view taken all along by the department have been validated by the insertion of the explanation. 19. Now we proceed to consider the first ground of appeal by the appellant. It is the submission of the appellant that appellants are institute/establishment providing education qualification recognized by law. 20. As submitted by the learned counsel for the appellants, a plain reading of the provisions would reveal that the basic conditions for a service to be taxable under commercial training or coaching service are: The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competitive examination various entrance tests, etc. It is clarified that by definition such institutes are outside the purview of commercial training or coaching centres. It is quite clear that this clarification is explaining the definition itself which we have already examined and we have come to the conclusion that it cannot be said that neither SCEC nor the colleges managed by them can be said to be issuing degree/diploma/certificates as contemplated in the definition. 24. The next submission was that in addition to education imparted towards intermediate in the first and second year, appellant's-society introduced optional courses in the year 1991. These courses are integrated in which the syllabus of first and second year of the intermediate course is offered to students securing a high percentage of marks in their 10 th and first year intermediate. These optional courses enable the students to appear in various entrance examinations such as IIT-JEE, EAMCET, etc. The colleges only follow a different method of imparting the Intermediate education to the students and no separate training was provided to the students for preparations for the entrance exams. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants are engaged in imparting intermediate education and at the end of the two years course, the student is required to pass an examination conducted by the Andhra Pradesh Education Board. The question papers set for the examination are same for all the intermediate students all over the state of Andhra Pradesh irrespective of the institution from which they appear for the exam. The answer papers are evaluated by the teachers specifically deputed by the State Examination Board. At the successful completion of the examination the student is given a marks card by the appellants and the same will be in accordance with the T-rolls maintained by the State Board of Education common to all the institutions. The marks sheet is signed by the Controller of Examinations, Intermediate Board as well as the Principal of the respective college. Thereafter the student is also given the Transfer Certificate and the conduct certificate by the appellants' colleges. It is only on production of the Transfer Certificate from the colleges of the appellants' society, the students would gain admission for further studies. Thus the mark sheets and the Transfer Certificates establish that the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y coached by SCEC in the campus set up by them. While it has been admitted that in places like Vijayawada and Hyderabad, there were separate campuses, in other places such campuses could be located in the college itself. 25. Another important aspect to be noted is that not all the students who undertake to study in the colleges of/managed by SCEC are required to undergo the coaching for entrance examination. It is only optional. If it is optional, it is bound to be separate. Further evidence also has been brought out to show that such training is given in separate campus. 26. Another important aspect that has been brought out is the fee structure for intermediate course is decided by the state government. Therefore the management cannot charge higher fee. This is in another reason why the coaching given for entrance examination for which the fee varies from ₹ 8, 000/- to ₹ 75, 000/- per year cannot be integral part of curriculum or coaching as a part of regular college course; The moment it becomes the part of regular course, the fee charged cannot be more than prescribed by the state government and definitely cannot be the amounts charged by SCEC for such coachin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be found. If additional fee is collected treating the coaching provided for competitive examinations as an integral part of Intermediate course and if the fees happen to be more than the prescribed amount by the Board, it becomes income of the government. Therefore the claim that special coaching/optional coaching provided is an integral part of the regular curriculum of junior colleges is not based on facts. If 94% of the Intermediate students studying in the campuses and undergoing the training/coaching for competitive exams and are paying the extra fee, it could not have been for the regular training/coaching provided as a part of curriculum of the colleges. The institutions run by the appellant cannot be said to be coming under the exempted category or getting excluded from the definition. 30. The submission made by the special consultant that in campuses of SCEC there could be students from different colleges and therefore the sanctity of a student belonging to a college got lost and in fact all students irrespective of the fact of their studying in college run by SCEC or managed by SCEC are called students of SCEC institutions. The policies relating to admissions, transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmance expected for receiving the training or coaching for competitive exams and this is another reason that such a course cannot be part of regular course and cannot be extended to all the students who are in college. 33. The above observations would show that the schools/institutions/Jr. colleges run by the appellants are neither excluded by the definition nor eligible for exemption Notification No.10/2003 issued by the Government in 2003. 34. The next issue is whether the extended period could have been invoked for demanding service tax in this case. It was vehemently urged on behalf of the appellants by the learned counsel that appellants had fully cooperated with the department and provided the information whenever called for. The first ground taken for the purpose of taking a view that extended period could not have been invoked is that the appellant entertained a bona fide belief that the education imparted by them was not leviable to service tax under the head of 'commercial training or coaching'. It was submitted that there was no mala fide intention on the part of the appellant to evade service tax. 35. The learned counsel relied upon the decision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Kota, it was submitted that the appellants had mistakenly taken service tax registration. It was submitted that there also summons were issued and premises of the appellant was searched on 8.12.2005 and on 15.12.2005 and letter was issued demanding appellants to pay service tax for the year 2005-06. There also on 26.12.2005, the appellant took the stand that appellant was a charitable institution and not a commercial concern and hence are not liable to service tax. Finally in Kota, Rajasthan, a show-cause notice was issued on 25.5.2006 demanding service tax of ₹ 25,07,717/- for the period from July 2003 to October 2005 and the matter is still under dispute. However it was submitted by the learned special consultant that SCEC had obtained service tax registration in Kota for the centre Kota and filed ST-3 returns from July 2003 onwards itself. They also paid some service tax which was found to be much less than what was actually due according to the Revenue and hence the proceedings were initiated for demanding differential service tax for the period from 1.7.2003 to 5.10.2005. After 5.10.2005, Kota Centre was closed. It is surprising that in Kota, the ground that appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been defined in sub-section (3)(ii) of Section 11A of the Act. A plain reading of the said definition shows that the concept of knowledge by the departmental authority is entirely absent. Hence, if one imports such concept in sub-section (1) of Section 11A of the Act or the proviso thereunder it would tantamount to rewriting the statutory provision and no canon of interpretation permits such an exercise by any Court. If it is not open to the superior court to either add or substitute words in a statute such right cannot be available to a statutory Tribunal. 17. The proviso cannot be read to mean that because there is knowledge the suppression which stands established disappears. Similarly the concept of reasonable period of limitation which is sought to be read into the provision by some of the orders of the Tribunal also cannot be permitted in law when the statute itself has provided for a fixed period of limitation. It is equally well settled that it is not open to the Court while reading a provision to either rewrite the period of limitation or curtail the prescribed period of limitation. 18. The Proviso comes into play only when suppression etc. is established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pari materia with Section 73(1)] would be attracted once there is an intention to evade excise duty and contravention of the provisions of the Act. The cause of action has been attributed to the date of knowledge i.e., the date on which details were called for from the respondent by the department and period of 5 years should be reckoned from that date. If the decision of the Hon'ble Supreme Court is followed, in this case the details were called for on 13.7.2003 and period of 5 years would extend tax demand to 12.7.2008 in view of the contravention of provisions of Section 66, 67 and 68 of Finance Act, 1994. 40. It was countered by the learned counsel for the appellants with the submission that the details as regards the service charges collected and service tax payable were never called for from them till search operations were conducted and it was only in 2006-07, according to the learned counsel, the information was called for. He submitted that as soon as the information was called for they had submitted the details. He submitted that there was lot of correspondence with the department but in none of the letters, specific information of actual value of service rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agency and avoid complying with the directions and requests and force the department to undertake coercive measures would be better off than a law abiding citizen who likes to pursue the matter in a legal and proper manner. Question arises then what would be legal and proper procedure for doing this. If a law abiding citizen would have taken the registration and filed the returns with the relevant information showing the service tax payable but would not have paid the same if he really felt he would not be liable to pay. This is the proper legal course to adopt which would mean that there is no suppression of facts on the part of the assessee since the information required has been given and the self-assessment procedure, which is the procedure at present adopted under service tax matters has been followed. When an assessee files returns showing the service tax payable but does not pay the same and he has a bona fide belief that he does not have to pay and gives a covering letter with the same, the department is bound to issue a show-cause notice within the normal period and i.e. the time when the bona fide belief would come into play since the appellant has complied with the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... east on a portion of a fee if not on the full amount. Since all the details of the dispute between the department and the appellant in Kota is not available and not on record and may not be of much relevance also, the same is not being considered. The same procedure of obtaining registration and paying service tax and intimating the total amount collected as fee and total amount on which service tax is payable and why service tax is not payable on the balance amount according to the appellant could have been intimated and incorporated in the returns by the assessee by taking a registration in which case extended period could not have been invoked. Under these circumstances, we hold that extended period has been correctly invoked in this case. 43. At this stage it is also to be taken note of that service tax is an indirect tax and all that the appellants had to do was to charge service tax to the students and pay it to the government. Unlike several cases that come before us day in and day out wherein department would have issued show cause notice after a number of years imposing liability to tax which would not have been collected but would have to be paid with interest besides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax in Kota. Therefore unless the very same facts are considered by a superior judicial forum or at least under the similar circumstances, a decision in favourable to the appellant has been taken, it would not be appropriate to simply follow the precedent decisions and apply the same to a case where the facts are totally dissimilar. 46. Another important aspect that is to be taken note of and that comes to our mind while dealing with the issue in this case is the fact that many a times decisions rendered could be totally wrong. Some of the examples that come to the mind straightaway are: The Larger Bench of the Tribunal in the case of Machino Montell Ltd.: 2004 (168) E.L.T. 466 (LB-Tribunal) had taken a view that penalty is not mandatory under Section 11AC for Central Excise Act which ultimately came to be negatived by the Hon'ble Supreme Court. Can we say that based on the decision of the Tribunal a layman could have entertained a bona fide belief after considering the statute and the decisions that penalty is not mandatory. There were several decisions taking a view that excise duty is a duty on manufacture and therefore post-manufacturing expenses cannot be inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaining a belief that the assessee was not liable to pay service tax. 49. In Indian Institute of Aircraft Engineering vs. UOI: 2013 (30) S.T.R. 689 (Del.), it was submitted that Hon'ble High Court of Delhi took the view that words and phrases viz., recognized by law is a very wide one. The learned counsel relied upon paragraph 14, 21-23 and 25 to support his submissions that the issue of certificates by the intermediate colleges run by the appellant which were signed by the Controller of Exams and the Principal would be covered by the decision of the Hon'ble High Court of Delhi. The relevant paragraphs cited by the learned counsel are reproduced below: 14. We have wondered, what could be the reason for exempting from payment of Service Tax those training or coaching centres, even though commercial, whose certificate/degree/diploma/qualification is 'recognized by law'. The only plausible reason, according to us, can be to exclude from ambit of Service Tax those training or coaching centres which are otherwise regulated by any law inasmuch as recognition of certificate/degree/diploma/qualification conferred by such training or coaching centres will necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even if it be only for the purpose of eligibility for obtaining ultimate licence/approval for certifying repair/maintenance/airworthiness of aircrafts. The Act, Rules and CAR distinguish an approved Institute from an unapproved one and a successful candidate from an approved institute would be entitled to enforce the right, conferred on him by the Act, Rules and CAR, to one year relaxation against the DGCA in a Court of law. The inference can only be one, that the Course Completion Certificate/training offered by such Institutes is recognized by law. 50. We find that in this case the Hon'ble High Court has examined the issue as the course conducted by the institute for obtaining basic aircraft maintenance engineering licence would be covered by the term recognized by law . After considering the provisions of DGCA Act, the nature of control exercised by DGCA over such institutions, the Court concluded that they were regulated by law. It was also held that the expression recognized by law is of wider import. Therefore it was held that the course completion certificate issued by the institute was held to be recognized by law. In this case we have examined and came to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this context. The relevant paragraphs in Larger Bench decision of the Tribunal in the case of Great Lakes Institute of Management Ltd. Ors.:- 2013 (32) S.T.R. 305 (Tri. - LB) are reproduced below: 10. The order dated 16.4.2013 has referred, the limited issue whether Commercial coaching or Training as defined in Sections 65(26), 65(27) and 65(105)(zzc) of the Act accommodates a distinction between imparting of a specific skill by an institution such as in computer literacy, computer operation, spoken English or accountancy on the one hand and a broader format of education imparted by an institution of higher learning providing a course of instruction in MBA, Management, Computer Science or similar disciplines. Other substantive issues that arise in each of the several appeals are outside the scope of the reference and will be relegated for adjudication to the regular Bench. We have therefore omitted a mention of the several contentions urged, on aspects which are outside the scope of the reference to this Bench. 11. Though we have averted to precedents cited at the Bar, explaining the scope of the expression educational institution and whether education is a charitab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, duration, periodicity, tenure/duration or like conditions. Where legislature cuts with a wide blade, absent a constitutional basis, we discern no scope for introducing restrictions by employing an inappropriate, unwarranted and therefore a counter - majoritarian device, of restrictive interpretation. Where a legislatively mandated definition is available, it is impermissible to look to extra - textual guidance. 53. We find the relevance on these observations of the Larger Bench by the learned special consultant are appropriate and therefore the decision of the Tribunal in the case of ICFAI institutes is of no help to the appellants. 54. Further, the decision of the Larger Bench also cannot be relied upon since the issue decided by the Larger Bench has no relevance to the case before us and neither the facts of the case now legal issues have relevance to the context of the decision of the Larger Bench as regards other issues. 55. As regards the decisions cited by the learned counsel against invocation of extended period of limitation in the case of retrospective amendment, first of all, we have to observe that we have already taken a view that even before the explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been claimed, it can be said that the facts under consideration were similar to the ones before us. After considering the decisions and after considering the facts of this case, we find that because subsequently a view which was favourable to the assessee was taken by the Tribunal, cannot lead to the conclusion that appellant's belief was a bona fide belief and there was no suppression of facts or misdeclaration, etc. We have already examined the issue and came to the conclusion that extended period could have been invoked in this case based on detail analysis of facts, chronological events, results of investigation conducted by the Revenue and the process of conducting coaching by the appellants. Therefore, these decisions are also not relevant. 58. The next issue is the quantum of demand to be confirmed. It was submitted during the course of hearing that in subsequent proceedings the Commissioner himself has reduced the demand and has allowed certain deductions. According to the learned counsel, the Commissioner in his order-in-original No.27/2012 dated 30.3.2012 allowed deductions of miscellaneous expenses and other charges such as mess fees, hostel fees, etc. Subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue of liability under 'commercial training or coaching service' is the case of ICFAI (supra). In that case penalty under Section 78 was upheld but penalties under Section 76 and 77 were set aside. The case of ICFAI can be and has to be distinguished since in that case it was the case of the Revenue that the ICFAI had misrepresented facts by submitting that ICFAI University was conducting various courses while it was not an entity established under, or recognized by law . At least in this case, there is no allegation of such misrepresentation. While the appellants did not submit the information but went on contesting in Andhra Pradesh that they are not liable to pay having taken registration in Kota, it has to be accepted that the ground taken by them was always that appellant was a charitable trust and the course conducted by them was part of the curriculum on various grounds. Nevertheless, it is not the case of the department also that the fact that there were 12 separate coaching centres was suppressed or was not disclosed when enquired into. During investigations also no fudging of records or manipulation of records or misrepresentation has been found before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of Finance Act, 1994, it is imposable since it is for mere contravention of the relevant provision. Therefore penalty under Section 77 of Finance Act 1994 of ₹ 1000/- is upheld. 65. Normally when the service tax amount is required to be quantified, the matter is remanded to the original adjudicating authority for doing so. In this case in the absence of all the relevant details and the breakup under various heads, it may not be easily possible for the adjudicating authority to do the quantification without delay. In any case, the relevant details are required to be furnished by the appellants only to facilitate this. Therefore instead of remanding the matter for quantification, we direct the appellants to submit detailed worksheet year-wise to the Commissioner within two months from the date of receipt of this order quantifying the amount payable by them in terms of the decision taken by us above and also interest up to the date of preparation of such worksheet and thereafter interest per day payable. If the matter is not taken in appeal by the appellants or if matter is taken in appeal and no stay is granted by Supreme Court, needless to say that they shall pay the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Board, enables the students to seek further higher education like graduation or for admission to professional courses like, Engineering, Medical, etc. Formal education provided by school and college is not the subject matter of taxation under the Service Tax as defined in the Act. Such formal educational institution are not defined as Commercial Training or Coaching Centre under Section 65(27) of the Finance Act, 1994 and thus the coaching provided by such institution in addition to their prescribed syllabus by the Board is not the taxable activity under the Finance Act, 1994. This was also clarified time to time by CBEC, including Budget Circular No. D.O.F. No. 334/1/2010-TRU dated 26.2.2010, which reads as under: - 6.1 Commercial training and coaching service was introduced in Budget 2003 with a view to tax the mushrooming coaching institutes and training centres which either provide coaching classes for examinations or unrecognized courses in various areas such as, management, marketing, engineering etc. The schools, institutes, colleges and universities providing courses that lead to award of recognized diplomas/degrees and sports education were kept out of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aching from the students of the junior college is not a deciding factor as per the provisions of the Finance Act, 1994 and the clarification by the Board dated 20.6.2003. Even the activity of providing coaching in other junior colleges, set up by different bodies, by the appellant by way of collaboration or such other arrangement will also be exempted under the exclusion clause of Section 65(27) read with clarification of the CBE C dated 20.6.2003. After the successful completion of the intermediate examination by the students enrolled in the junior colleges, in addition to the marks sheet issued by the Board under signature of the Controller of Examination, the college provides 'transfer certificate' and 'conduct certificate' to the students to facilitate their further education, and/ or employment. The adverse inference drawn by the learned Commissioner for the reasons that the assessee has collected monetary consideration in excess of the amount/fee fixed by the Board of Intermediate Education is of no relevance under the provisions of the Finance Act, 1994. The Finance Act, 1994 does not lay down any monetary limits in case of coaching provided by scho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od. All the powers of a Court with regard to attendance of witness, discovery of information/documents, etc. are vested in the adjudicating authority. Only for failure on the part of the adjudicating authority to exercise jurisdiction vested in him, extended period is not invokable. 71.4 That it is also taken notice of that it was a new tax imposed vide Finance Act, 2003, as regards 'Commercial Coaching and Training'. As is evident from the facts, particularly correspondence of appellant with Revenue, the issue of interpretation of law was involved. 71.5 Thus, in my considered view in the facts and circumstances, extended period of limitation is not attracted in the appellant's case and the appellant will be liable to tax only for the normal period from the date of show-cause notice in respect of the activity of commercial coaching from its coaching centre. 72. As regards penalty, under the aforementioned facts and circumstances, there is reasonable cause for non-payment of Service Tax, non-filing of returns, not obtaining of registration as a Service Tax assessee. In view of no deliberate defiance of law, the provisions of Section 80 of the Finance Act, 1994 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleges under its management or under the management of others, as held by the learned Member (Technical), or no tax would be leviable in such cases as held by learned Member (Judicial). 78. The main contention of the learned Advocate for the Appellants is that the Appellant Society through their own junior colleges and the junior colleges of other societies, under its management, imparts education to the students for intermediate 11 th and 12 th Standards, like any other school/college providing education for 11 th and 12 th Standard, anywhere in the country, each of the colleges, either belonging to the Appellant Society or belong to other societies and run by the Appellant Society are recognized by the Andhra Pradesh Intermediate Board and are monitored and regulated by the Board. The Appellant Society introduced optional stream of courses in the year 1991, much before service tax was introduced on Commercial Training or Coaching Centre in 2003, for students undergoing intermediate courses in their colleges. These optional courses are offered to students securing high percentage of marks in intermediate examination and to enable the students to appear and score high marks in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recognized by law. The coaching or tutorial classes mentioned in the inclusive part of the definition and it cannot be covered in the exclusive portion of the definition. While interpreting the definition of Commercial Training or Coaching Centre , the exclusion part must be strictly construed, what is being included in the definition cannot be excluded, unless it is specifically mentioned. In the present case, according to the Appellant, they were offering coaching classes to the students of intermediate standard of their colleges and other colleges for appearing joint entrance examination of IIT, JEE etc. In my considered view, when coaching classes have categorically included in the definition, then, it cannot be excluded by stretching the meaning of exclusion clause of the definition. 81. The learned Advocate strongly relied upon the Board's circular No. 59/8/2003-ST, dt. 28.06.2003, whether Service Tax is applicable on institute or establishment providing commercial coaching in addition to the recognized degree courses. It is clarified that some institutes like colleges, apart from imparting education for obtaining recognized degree/diploma/certificate, also impart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; that the collection of fees and the details would be done at the Central Office and that in this premises, Attendance Register and records connecting to education were only maintained. 59. In the Statement dated 13.03.2006 given before the Superintendent of Central Excise under Section 14 of the Central Excise Act 1944, Dr. B.S. Rao, President, Sri Chaitanya Educational Committee had stated that their accounting was centralized at Vijayawada for all the branches that in every branch, Principal to look into academic and administration was posted; that in the Head Office at Vijayawada, Dr. B. Jhansi Laxmi and himself would look after the general administration; that some students were day students and some stay as boarders; that the courses offered were Bi.P.C., M.P.C., M.E.C. both English and Telugu media; that the boarding facilities were only for M.P.C. and Bi.P.C. and Boarding facilities were given both for intermediate and coaching students of competitive examinations; that for the students who score more than 90% in 10 th class, there was no fees at all, while some concession would be given for the students who got more than 80% in 10 th class; that for competitive exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions. I have noticed that the Appellant was running independent coaching classes in Kota Rajasthan, while, in Andhra Pradesh, the Appellant were running the colleges of intermediate courses and also offering the coaching classes. So, there is a change of circumstances in Andhra Pradesh. It is seen that Commercial Coaching Training Class in the Service Tax net was introduced in 2003 and the Appellant disputed the levy of Service Tax in Andhra Pradesh from 31.07.2003. After detailed correspondence, the department by letter dt.10.05.2005, for the first time directed the Appellant to provide the details and other records. It is also noticed that the matter went upto the Hon'ble High Court. The Appellant took a plea that it is a charitable institute and not covered within the definition of Commercial Training or Coaching Centre . It is true that this view was supported by the catena decisions of the Tribunal. But, this was resolved against the Appellant by inserting Explanation under Section 65(105)(zzc) of Act, with retrospective amendment by Finance Act, 2010 that the expression Commercial Training or Coaching Centre shall include a Trust or a Society with or without p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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