TMI Blog2017 (3) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... - decided in favor of assessee. - ST/Stay/70245/2016 And ST/70594 & 70411/2016-ST[SM] - A/70155-70156/2017-SM[BR] - Dated:- 27-1-2017 - Mr. Anil G. Shakkarwar, Member (Technical) Shri Sanjay Kumar Ms. Keerti Kataria, Advocates for the assessee-appellant. Shri Pawan Kumar Singh, (Supdt,) (A.R.) for the Department. Per Mr. Anil G. Shakkarwar The present two cross appeals are arising out of impugned Order-in-Appeal No. 230/ST/ALLD/2015 dated 24.11.2015. Appeal No. ST/70594/2016 is filed by M/s. Apex Institute and Appeal No.ST/70411/2016 is filed by Revenue. 2. The brief facts of the case are that, M/s. Apex Institute was engaged in providing commercial training or coaching services. On 05.01.2011 departmental of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected ₹ 4,19,500/- as fee from the students. They further contended that it was not possible to them to realize fee as per the fee structure and the fee is settled in between the institute and students after allowing incentives. They further contended that the fee recorded by the students before Investigating Officer clearly indicated that the actual fee paid by them was much below the fee structure and therefore the quantification of Service Tax on the basis of fee structure of the institute was erroneous. They further contended that the department did not adduce any evidence to prove that M/s. Apex Institute had received coaching fee of ₹ 1,57,83,000/- in the year 2010-11. The Original Authority did not appreciate the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and confirmed. However, he has given option to the assessee-appellant to said appeal to pay 25% of the penalty within 30 days of receipt of said Order-in-Appeal. Aggrieved by the said order, M/s. Apex Institute preferred appeal before this Tribunal. Further, aggrieved by the order of learned Commissioner (Appeals) having given option of 25% pay of penalty, Revenue have preferred appeal before this Tribunal. 3. Heard the learned D.R. for appeal by Revenue. Learned D.R. has submitted that the department has contended that option to pay reduced penalty has to be provided by Original Authority and Commissioner (Appeals) does not have any such authority under the law and therefore said part of the impugned Order-in-Appeal is bad in law. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Institute collected ₹ 1,57,83,000/- in the year 2010-11 is worth consideration for the reason that Original Authority and Commissioner (Appeals) have confirmed that the calculation of taxable value and Service Tax liability was on the basis of forms recovered and the standard fee structure informed by the Manager of the institute and it was not on the basis of either fee receipt or books of account or bank statement. Therefore, I hold that impugned show cause notice is presumptive in nature. Therefore, the said show cause notice dated 11.03.2013 is not tenable in law. I, therefore, allow the appeal (ST/ 70594/2016) filed by M/s. Apex Institute and reject the appeal (ST/70411/2016) filed by Revenue. The stay application also filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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