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TMI Blog2018 (10) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... s were offering degree of B.Arch., but not recognized by the All India Council of Technical Education (AICTE) and, therefore, covered under the definition of "Commercial Training or Coaching Centre" in terms of Section 65(27) of the Finance Act, 1994 read with Board Circular No. 107/1/2009-ST dated 28.01.2009, wherein it is clarified that, "from the year 2005 onwards, a technical institution or establishment (which is otherwise recognized being a university, or affiliate college) not having AICTE approval, cannot be called to be the one issuing any certificate or diploma or degree or any educational qualification recognized by the law, for the time being in force and thus be within the ambit of Service Tax". It was alleged that the assessee-Respondents were required to pay Service Tax under taxable service, namely, 'Commercial Training or Coaching Service' [Section 65(105)(zzc) of the Finance Act, 1994 (now clause (44) of the Section 65B of the Finance Act, 1994)]. Accordingly, a show cause notice dated 19.09.2014 covering the period from 01.04.2009 to 30.09.2013 was issued for recovery of Service Tax amounting to Rs. 2,54,02,518/- under proviso to Section 73(1) of the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed by the regulations notified thereunder. He, therefore, submitted that, though the degree of B. Arch. is a recognized degree, however, the same has to be approved by AICTE in view of the clarification issued by the CBEC vide Circular dated 28.01.2009. He further submitted that, the present demand can be bifurcated into two periods i.e. one is prior to 01.07.2012 and another is after 01.07.2013 i.e. under negative regime. He submitted that, in both the regimes, if the degree is recognized by any law for the time being in force, then the Respondent is liable to pay Service Tax. He further submitted that, as per the website of Human Resource & Development, the role of COA (Council of Architecture) is mentioned as recommending authority, whereas AICTE is termed as regulatory body. Therefore, he submitted that the impugned order is liable to be set aside and appeal be allowed. 5. On the other hand, the learned counsel for the assessee-Respondents, submitted that the learned Commissioner has rightly dropped the demand proposed in the Show Cause Notice. He submitted as follows : (i) That the show cause notice alleging suppression of facts, non-payment and evasion of tax for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g rather they are carrying out activity under a curriculum which is recognized by law. (v) That therefore for the period prior to 1.7.2012 the noticee is not only falling under the exclusion of commercial training or coaching centre, but they are also not falling under the definition of taxable service as they are not providing any service of commercial training or coaching as they are giving full fledged education as minimum standard of education specified by the affiliated university, UGC, COA for the given period. (vi) That the contention that the noticee is not recognized by law as he is not registered with AICTE in terms of AICTE Act and the public notice issued by them and in the light of circular dated 28.1.2009. It is submitted that the Hon'ble High Court of Bombay at Aurangabad has categorically held that COA under the Act of 1972 is a special Act, complete code and having overriding effect over the General Law of AICTE and hence the approval by COA is right in law and recognized by law. Alternatively also the exclusion clause of section 65 (105) (zzc) and the definition given U/s 66D which defines negative list of services at clause-l categorically says that services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That it is also noteworthy to mention that by virtue of Article-41 read in conjunction with entry 63-66 and further read with entry-25 of the concurrent list of the 7th schedule to the Constitution of India, any Architectural college which is run in India and imparting education has to be recognized as per law in accordance with Architect Act of 1972 and norms of UGC, which is fulfilled by the noticee in the present case. (x) That it is very surprising and shocking that all over India only the noticee college whose rendering architectural education under a curriculum is given a show cause and none of the colleges as specified of hand book of professional documents issued by COA is alleged on account of having no permission from AICTE, which strengthens the viewpoint of noticee. (xi) That UGC which is the apex organization and a constitutional body working in harmony with Entry-25 of concurrent list Schedule-7 of Constitution of India recognizes COA, RTU and the degrees issued by them as in accordance with law in spite of the fact that there is no permission from AICTE with regard to approval of college etc. (xii) That the noticee also submit that AICTE is governed by Act of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute that the said degree B. Arch. is a recognized degree under UGC Act (University Grants Commission) and also recognized by Rajasthan Technical University, Kota; Council of Architecture; and Yashwantrao Chavan Maharashtra Open University. However, the only case of the Department is that, the said degree is not recognized by AICTE by relying upon the Board Circular dated 28.01.2009. We have gone through the judgment dated 08.09.2004 in W.P. No. 5942 of 2004 wherein the issue was - Whether the All India Council of Technical Education Act, 1987 over rides the provisions of Architects Act, 1972 in the matter of prescribing and regulating norms and standards of architectural institutions?. The Hon'ble High Court in para 20 has held as under : "20. In the light of the above observations it is obvious that the Legislature never intended to confer on the AICTE a super power undermining the status, authority and autonomous functioning of the existing statutory bodies in areas and spheres assigned to them under the respective legislations. There is nothing in the AICTE Act to suggest a legislative intention to belittle and destroy the authority or autonomy of Council of Architecture which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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