TMI Blog2018 (11) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri N. Viswanathan, Advocate For the Appellant Shri K. Veerabhadra Reddy, JC (AR) For the Respondent ORDER Per Madhu Mohan Damodhar The facts of the case are that appellants are engaged in conducting courses of software testing viz. CATE, CSTP, ADST for various students and other clients. Pursuant to an audit, it appeared to the department that appellant committed the following infractions : (i) The appellants were paying service tax only on 50% of gross amount representing training fees; however, not discharging tax liability of remaining 50% amount representing sale value of the course material. It appeared that the value of course materials would form part of taxable value and hence appellant had not discharged tax liability of Rs.1,12,26,207/- for the period April 2005 to November 2008. (ii) It was noticed that appellant had not remitted service tax amount from April 2007 to November 2008 in respect of course fee, the liability in this respect, after adjusting cenvat credit was worked out to ₹ 19,28,126/-. On being pointed out, appellants remitted an amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course material supplied to their students ₹ 1,12,26,207/- (demand proposed in SCN dt.09.04.2009) (ii) ₹ 13,77,554/- (demand proposed in SCN dt. 16.04.2010) (iii) ₹ 1,07,550/- (demand proposed in SCN dt. 20.04.2011) 5.3 Ld. Advocate made the following arguments with regard to demands in respect of value of course materials : i) The learned adjudicating authority solely relied CBEC s Circular No.59/8/2003 dt.20.06.2003 to hold that the study materials supplied by the appellant in providing the above course were not excludible from the taxable value as they are not standard textbooks relying on Apex Court s decision in CCE Vs. Andhra Sugars Ltd. [1988 (38) ELT 564 and observing that it is settled law that the Ministry s clarification issued simultaneously with any exemption notification is equally important for interpretation of Notification but failing to mention which of the term used in the above Notification was interpreted by him using the above Circular to hold that only standard textbooks are excludible from the value. ii) The clarification vide the above CBEC s Circular that only standard textbooks are excludible from the value in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived by them represents the course fee. Ld. A.R also drew our attention to para 6.5 of the impugned order wherein the adjudicating authority has concluded that appellant deliberately adopted 50% of the course fee as charges for course material only to avoid service tax liability. 7. Heard both sides. 8. In respect of the amounts related to Franchise service and short payment referred to in para 5.1 supra, conceded by the appellant, the said demands as confirmed in the impugned order are not interfered with. So ordered. 9.1 However with regard to issue of inclusability of value of course material supplied to appellants, we find that it has been held in a number of Tribunal decisions that the value of such course material is not includible in the taxable value. 9.2 In the case of Cerebral Learning Solutions Pvt. Ltd. Vs CCE Indore 2013 (32) STR 379 (Tri.-Del.), the Tribunal inter alia, held as under : 6. In our considered view, the clarification in the Board Circular dated 20-6-2003 is misconceived, clearly illegal and contrary to the statutory exemption Notification dated 20-6-2003. Where the legislature has spoken or in exercise of its statutory power exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided by the appellant herein (including the value of course material supplied) is to be included in the gross value of the service provided by the appellant? The question is also whether the Government has exempted the whole of the value of goods and material sold, from the gross value of taxable service, vide the Notification issued under Section 93(1). 10. The exemption notification is clear and admits no restrictive clauses. Consequently, the assessee is entitled to relief. 9.3 In the case of Chate coaching Classes Pvt. Ltd. Vs CCE Aurangabad - 2013 (29) STR 138 (Tri.-Mumbai), the Tribunal observed as under : The department has issued clarification vide Circular No. 59/8/2003-S.T., dated 20-6-2003 and as per the said clarification, it was clarified that in case of commercial training and coaching institutes, the exclusion shall apply only to the sale value of standard textbooks, which are priced. Any study material or written text provided by such institute as a part of service which does not satisfy the above criteria will be subjected to service tax. On the basis of this clarification, the demand has been confirmed against the appellant. The said issue came u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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