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TMI Blog2018 (10) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: SR. No. SCN C No. & Date Period Involved Commercial Coaching IPR CENVAT Credit 1. C.No. I-26(494) ST/ APR/Gr.-B-I/78. 2009-10/10050 dated 27.04.2011 01.10.2007 to 31.03.2010 Rs. 1,78,91,307/- Rs. 36,91,038/- Rs. 88,09,781/- 2. Rs. 80,702/- Rs. 7,37,263/- - 3. Rs.4,44,739/- - Total Rs. 1,79,72,009/- Rs. 48,73,040/- Rs. 88,09,781/- 3. Heard the parties and perused the written submissions. 4 . Issue (a) Service Tax demand whether arises under 'commercial training or coaching service' 4.1 At the outset, this identical issue came before this Tribunal for the earlier period (i.e. 01.07.2003 to 09.09.2004 ) and the matter came to be decided in favour of the Appellant in their own matter - NIS Sparta Limited Vs CST, New Delhi 2015- TIOL-209-CESTAT-DEL. This decision continues to hold the field till date. It is submitted that there is no change in facts/ circumstances and law for the periods covered in the present show cause notices as well (i.e. 01.10.2007 to 31.03.2010 and 01.04.2010 to 31.03.2011). Therefore, this issue is squarely covered by the earlier decision of this Tribunal. It is pertinent to not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also stands decided in favour of assesses by the Hon'ble Delhi High Court in the case of India Institute of Aircraft Engineering Vs. UOI 2013 (30) STR 689 (Del). 2.5 That benefit of Notification no. 24/2004-ST dated 10.09.2004 was also available, as the candidate(s) got employment. 2.6 The Service Tax law does not prescribe that only certificates given by UGC, AICTE approved institutions are entitled to the exclusion. The Respondent has also not shown any statutory provision for this purpose. Consequently, this submission of the Respondent is against the provisions of law. 2.7 lastly, the judgment cited by the Revenue, Academy of Maritime Education Trust Vs CST Chennai 2014-TIOL-1327-HC-MAD-ST has no applicability in the instant matter. This judgment does not distinguish the ruling of Delhi High Court anywhere. The Madras High Court at para 3, only records the averment of the petitioner. It can be seen that the findings of the Madras High Court commence from para 6 onwards. The Madras High Court from paras 6 to 10 has not referred to the decision of the Delhi High Court anywhere, let alone distinguish it. In this view, it is completely incorrect to state that the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Tata Consultancy Services Vs. State of AP 2005(1) SCC 308. Even if it is assumed for the sake of argument that certain licenses were given by Cross Knowledge to the Appellant that itself ipso- facto, cannot lead to a demand under IPR service. The Revenue has failed to establish that the consideration paid by the Appellant to Cross Knowledge was towards license to use trade marks, designs, patents recognized under the Indian law. The Appellant places reliance on the following decisions: (i) Rochem Separation Systems (India) P Ltd Vs CST 2105 (39) STR 112 (Tri-Mum). " 8. ........................The definition of intellectual property right such as trdemark, patent etc. have, to be constructed in the same sense as in the Intellectual Property Right Acts such as the Patent Act and the Trademark Act. Only rights which are registered with the trademark/patent authorities are considered as Intellectual Property Right. The Commissioner has failed to go into these aspects in detail and has clubbed the entire service as Intellectual Property Right service." 3.3 Even if it is assumed for the sake of arguments that any service took place in the transaction at hand th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment took around two years to issue the Show cause notice. Hence, the delay cannot be attributed to the Appelalnt and therefore the extended period of limitation is not applicable in the present case. 5.2 in any case, on the same issue, with respect to 'commercial training or coaching service', earlier a show cause notice 01.07.2008 (refer NIS Sparta Ltd 2015-TIOL-209-CESTAT-DEL) had already been issued by the Department. Given this, Department was well aware of the issue. Hence, the present show cause notice, involving extended period and had the raise the subsequent demand within time as held by the Hon'ble Supreme Court in the case of Nizam Sugar Factory Vs CCE 2008 (9) STR 314 (SC). 6. The ld. AR submits the following contentions: Merely by stating that they were accredited by the IRDA, to impart such training to person(s) does not by itself establish that they were an institution authorized to issue certificate "recognized by the law for the time being in force" 6.1 In the subject case, the certificates issued by the Appellant after the completion of the training cannot be regarded as "recognized by the law for the time being in force', as the certificate issued by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and not a training certificate issued by a private entity like present Appellant". 8. Non applicability of case of Nizam Sugar Factory Vs. CCE, A.P. referred in 2006(197) ELT 465 (SC) under Finance Act 1994. 8.1 The ratio laid down in Niazam case was the department cannot allege suppression on the part of Assessee in subsequent Show Cause Notice when it was fully aware of the facts at the time of issuance of first notice. 8.2 The aforementioned ratio was laid down under Central Excise Act, when the Department was aware about manufacture of same item earlier. The Excise law required the manufacture to file classification/ valuation list apart from maintenance of various records, which were not done by the Appellant in Nizam Sugar factory case. The issue in Nizam Sugar case was suppression of taxable event of manufacture. 8.3 However, under Finance Act 1994, the Appellant in the instant case is working under as 'Self Assessment regime' and was supposed to assess the tax on his own file the return as required under Section 70 of the Act. Further, in the instant case it is not only the question of suppression of particular activity by the Appellant, but also the valuation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty Service, we find that the burden to prove that the activity is liable to service tax, is on the Revenue. In the present case, as per the agreement, admittedly, there is no consideration qua for IPR and the Revenue is not able to show any other evidence. Hence, when there is no consideration for IPR then the demand of service tax under IPR is liable to be set aside. Hence the demand is set aside. 10.2 We find that, with respect to, denial of Cenvat credit, the department case is, that the appellant had taken Cenvat credit on the invoices which are addressed to a separate unit, working at the same premises, and Cenvat credit in respect of non-registered branches. We find that name of the appellant i.e. from 'NIS Sparta' to "NIS Sparta (Division of Mudra Communications Pvt. Ltd.)' had been changed in accordance with High Court (permission) order. Moreover, the department is not disputing that the services mentioned in the invoices has been used by the appellant. It is settled law that substantive benefit cannot be denied merely on the procedural lapse. Therefore, we held the ld. Commissioner has wrongly denied the Cenvat credit to the appellant. 11. In view of the above, appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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