9911796707
TMI Blog2018 (12) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... Training Service. 2. Pursuant to Audit, it appeared to the Department that the appellants had not properly discharged their tax liability in respect of the following: (i) While providing computer software training to students, appellants had supplied course materials and had realized income thereof. Services provided by computer training institutes along with vocational and recreational training institutes were exempted from service tax from 01.07.2003 to 30.06.2004 vide Notification No. 09/2003-ST dated 20.06.2003. However, for the period from 01.07.2004 to 09.09.2004, there was no such exemption. The exemption was granted to vocational and recreational training institutes vide Notification No. 24/2004 dated 10.09.2004 whereas appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with interest and also imposed penalty under Section 78 of the Finance Act, 1994. In appeal, vide the impugned Order No. 231/2010 dated 16.12. 2010, the Commissioner (Appeals) confirmed the above tax demands and upheld the Order of the Original Authority to that extent. Hence, this appeal. 4. Today when the matter came up for hearing, Ld. Advocate Shri. M. Kannan appearing for the appellant makes oral and written submissions which can be broadly summarized as under : (i) In respect of the demand of Rs. 8,15,534/- under Commercial Coaching or Training Service for the period from 01.07.2004 to 15.06.2005 : * Ld. Advocate submits that the issue of taxability in respect of this activity had been in litigation. In fact, many of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 will be hit by limitation. (ii) In respect of inclusion of value of course materials resulting in demand of Rs. 45,919/-: * Ld. Advocate submits that the matter is no longer res integra and the same has been put to rest by a number of Tribunal decisions, for example M/s. Chate Coaching Classes Pvt. Ltd. Vs. Commr. ofC.Ex., Aurangabad - 2013 (29) S.T.R. 138 (Tri. - Mum.) and M/s. CSC Computer Education (P) Ltd. Vs. C.S.T., Chennai - 2018 (8) T.M.I. 1178 - CESTAT Chennai. (iii) In respect of the demand of Rs. 1,23,927/- with interest in respect of Franchisee Service for the period July 2003 to March 2007 : * Ld. Advocate submits that the said demand is conceded by the appellant. (iv) In respect of the demand of Rs. 1,57,598/- in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010. We also find that pursuant to the said Supreme Court judgement, the Tribunal in the case of M/s. Gargi Consultants Pvt. Ltd. (supra) relied upon by the Ld. Advocate had held that the fact of Tribunals having held in favour of the appellant during the impugned period till the said ratio was overturned by the Hon'ble Supreme Court in M/s. SunwinTechnosolution P. Ltd. (supra) is a legitimate ground for setting aside the demand for the extended period. The relevant portion of the Order is as under : "6. Having heard the submissions made by both the sides, we find that issue on merits is no longer res integra. The Hon'ble Supreme Court in the case of Sunwin Techno Solutions Pvt. Ltd., referred supra, has held that during the period from 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not justifiable. As such we set aside the impugned order and allow the appeal on the point of time-bar, with consequential relief to the appellant." 7.1.2 We find that the ratio laid down in M/s. Gargi (supra) will apply on all fours to the present appeal on hand. This being so, demand of Rs. 7,13,334/- with interest for the period from 10.09.2004 to 15.06.2005 is set aside on the ground of limitation. However, the demand for the previous period namely from 01.07.2004 to 09.09.2004 amounting to Rs. 1,02,200/- with interest thereon which has already been conceded by the Ld. Advocate, is upheld. The appellants will be required to pay up the said amount with interest, as applicable, till the date of payment. 7.2 With regard to the inclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2004 to 09.09.2004): Rs. 1,02,200/-, upheld; (ii) Equal penalty under Section 78 ibid with respect to demand of service tax under Franchisee Service: Rs. 1,23,927/-, upheld; and (iii) Equal penalty under Section 78 ibid, in respect of the demand under Renting of Immovable Property Service :Rs.1,57,598/-, upheld. 8.2 The total penalty imposed under Section 78 ibid., is therefore required to be reduced/modified to Rs. 3,83,725/- (Rs.1,02,200/- + Rs. 1,23,927/- + Rs. 1,57,598/-). So ordered. The appellant will also be entitled to the benefit of reduced penalty under Section 78 ibid., provided they fulfil the conditionalities of that Section, including paying up of the liabilities upheld in this Order along with interest thereon, as appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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