TMI Blog2017 (4) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... a power to make retrospective amendment and of the above nature, then, one cannot pick one or two words from the explanation and read them in isolation. The explanation would have to be read as a whole. So read, it clarifies the definition of the term “commercial training centre” or “coaching”. Once commercial training or coaching centre is defined and which definition is clarified by this explanation, then, the earlier views of the Benches of CESTAT would not hold the field. No assistance can be derived from the same. The service tax has to be computed, assessed and recovered in terms of the clear provisions of law and the power to levy, asses and recover is referable to the Central Excise Act, 1944. Therefore, the provisions of section 11A and its subsections and other sections of the Central Excise Act, 1944 would apply. If so applied, there is no basis for the apprehension that the tax would be recovered by extending the retrospective effect given to this explanation. The effect may be from 1st July, 2003, but to recover the tax from that date, there should be a power and there should be no fetter on that power. If there is any fetter or restriction on that power, then, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m these activities. The courses are for UPSC examination, MPSC examination etc. The brochure would indicate as to how this Trust enables these students to gain a certain degree of confidence and face these competitive examinations. The petitioner points out that profit generation is not the motive or the main or predominant aim. Therefore, admission to the institution is never denied at any time on the ground that the student is not in a position to pay the fees. The particulars of students enrolled in the last three years have been set out in Annexure 'C' to the petition. Thus, the case of the petitioner is that it cannot fall within the net of service tax. However, on 27th August, 2010, a letter was addressed by the Superintendent of Central Excise, Pune-III to the petitioner, copy of which is annxed as Annexure 'D' to the petition. This letter refers to a circular dated 28th January, 2009 of the Central Board of Excise and Customs. That circular refers to the levy of service tax on educational institutions. The letter refers to the amendment in regard to non-levy of service tax on institutions, which are not profit making. However, after the Finance Act of 2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion predominantly work for profit or otherwise. In no case it can be termed as a trade or a business, but at best an occupation. Therefore, the profit is generated incidentally and that is not the only purpose for which the institution is established and functions accordingly. It is to impart education, which is a noble activity. 8. The petitioner has, in the process, relied upon certain decisions of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) and which have taken a view that institutions like the petitioner cannot be brought within the purview of the service tax leviable under the Finance Act, 1994. 9. Concededly, this view is taken by certain tribunals prior to 2010 and we need not refer to that in great details. The petitioners are also highlighting the fact that they are registered under the provisions of section 12 of the Income Tax Act, 1961. 10. Mr. Anturkar learned senior counsel appearing for the petitioner invited our attention to section 65(26) and (27) of the Finance Act, 1994. He read out to us the passages and paragraphs from the order of the tribunal functional at Chennai, taking a particular view of the levy. Mr. Anturkar does not disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a certificate and includes coaching or tutorial classes. Mr. Dwivedi submits that the further flaw in Mr. Anturkar's submissions is that the petitioner's activities are not a source of income. There is no connection or relevance to profit. Mr.Dwivedi submits that coaching for any examination or imparting skill are definitely falling within the purview of the term commercial training or coaching and if not, at least the definition of coaching centre . The show cause notice demands the tax after an adjudication. Mr. Dwivedi refers to the civil application moved in this writ petition and which refers to this factual aspect. Thus, he would submit that the other show cause notice dated 19th April, 2011, which is pending adjudication would be adjudicated in accordance with law. The demand now crystalised is limited to the show cause notices which have been already adjudicated. Mr. Anturkar's submissions have no basis for though the explanation has been introduced with retrospective effect from 1st July, 2003 by the Finance Act 2010 dated 8th May, 2010, still, the assessment and recovery of service tax would be in accordance with the provisions contained in the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere inserted with effect from 16th June, 2005 by Finance Act, 2005. Then, we have sub-clause (zzc), which read as under:- 65(105) taxable service means any service provided or to be provided - (zzc) to any person, by a commercial training or coaching centre in relation to commercial training or coaching. 17. Therefore, taxable service means any service provided or to be provided to any person, by a commercial training or coaching centre in relation to commercial training or coaching as defined above. 18. An explanation has been inserted by Finance Act, 2010 and it says, for the removal of doubts, it is hereby declared that the expression commercial training or coaching centre occurring in this sub-clause and in clauses (26) and (27) and (90a) shall include any centre or institute, by whatever name called, where training or coaching is 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. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states or clearly implies, retrospectivity must given with effect from 1st November, 1971, so as to encompass all assessments made within the period of six years therefore, whether they have become final by reason of the expiry of the period of four years or not. 13. By reason of the said Notification, with effect from 1st November, 1971, Rule 18(80)(5)(ii) has to be read as barring the Commissioner (or other authority to whom power in this behalf has been delegated by the commissioner) from revising of his own motion any assessment made or order passed under the Act or the rules if the assessment has been made or the order has been passed more than six years previous to 1st November, 1971. Put conversely, with effect from 1st November, 1971, Rule 18(80)(5)(ii) permits the Commissioner (or other authority) to revise of his own motion any assessment made or order passed under the Act or the rules provided the assessment has not been made or the order passed more than six years previously. This being the plain meaning, the said Notification must be given full effect. Full effect can be given only if the said Notification is read as being applicable not only to assessments which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the term commercial training centre or coaching . Once commercial training or coaching centre is defined and which definition is clarified by this explanation, then, the earlier views of the Benches of CESTAT would not hold the field. No assistance can be derived from the same. Further, as clarified by Mr. Dwivedi, there is no scope for any apprehension that the petitioner would be taxed by going backward for a decade or more. The service tax has to be computed, assessed and recovered in terms of the clear provisions of law and the power to levy, asses and recover is referable to the Central Excise Act, 1944. Therefore, the provisions of section 11A and its subsections and other sections of the Central Excise Act, 1944 would apply. If so applied, there is no basis for the apprehension that the tax would be recovered by extending the retrospective effect given to this explanation. The effect may be from 1st July, 2003, but to recover the tax from that date, there should be a power and there should be no fetter on that power. If there is any fetter or restriction on that power, then, that would operate. The show cause notice would have to be adjudicated in accordance with la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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