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TMI Blog2019 (5) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... s also been imposed under sections 76 and 77 (2) of the Act. 2. The aforesaid demand of Service Tax is based on the allegation that the Appellant provided 'commercial training or coaching' services to students between April, 2012 to June, 2012, whereas the case of the Appellant is that the consideration received from the students was only towards the conduct of a test known as 'International English Language Testing System' (hereinafter referred to as IELTS) and no 'commercial training or coaching' was imparted. 3. It transpires from the record that the Appellant had entered into an agreement on 9 September, 2010 with IELTS, Australia. This IELTS Centre Agreement granted a license to the Appellant to operate the business of IELTS Test Centers from various locations in India. IELTS, which is called 'International Standardized Test of English Language Proficiency' is widely accepted as a reliable means to determine whether a candidate can study in english medium language. Under the agreement, the Appellant was required to conduct the test in two modules namely, Academic Module or General Training Module. The Academic version of the module is intended for those who desire to study a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st in India and it had nothing to do with the preparation of any module or guiding/assisting any student for succeeding in such a test. It was specifically stated that the Appellant was not providing any coaching or training to the students taking the test. The Appellant further pointed out that prior to October, 2010, IELTS Australia Pty. Ltd. was conducting the test in India through Planet Education Exams Pvt. Ltd. but from October, 2010 the Appellant had been given the license to conduct the test in India. This test has two modules known as the Academic Module and the General Training Module. It was further stated that for the purpose of conducting the test, the appellant initially conducts test activities in which a person enrolls for the test after paying the requisite fee of Rs. 7,900/- and thereafter the Appellant holds the test, and declares the result. The Appellant, therefore, contended that it was not conducting any commercial training or coaching as for providing commercial training or coaching service, a person has to necessarily impart knowledge or skill which the Appellant, by no stretch of imagination, could be said to be providing. 7. The Commissioner, however, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en out-sourced by the notice to various sub-contractor. I also find that those sub-contractors are also paying service tax on that amount. This fact has not been denied by the notice. Thus, I am of the considered view that the amount of Rs. 550/- per candidate retained by the notice during the process of conducting IELTS test does not relate to activity of invigilator, as claimed by the notice. 4.10. As regard contention of the notice that they are not providing any commercial training or coaching to any candidate enrolling with them for conducting IELTS test, I have gone through the official web-site of the notice http://www.idp.com/india/studyabroed/stepbystepguide which shows that the Noticee for conducting IELTS test also provide support through advise, practice questions, IELTS Master classes and seminars to help the students for better preparation. Besides, the Noticee has also created a "Face-Book" page in the name of "Support and tips for IELTS Test" through which they are providing various tips & support to the students via various articles and video. This also clearly indicates that the Noticee for conducting IELTS tests not only working as an invigilator activity which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Appellant also provides support through advice, practice questions, IELTS Master Classes and seminars to help students for better preparation for IELTS Test is incorrect; (v) The conclusion drawn by the Commissioner in the impugned order from the contents of the Face Book that the Appellant is providing tips and support to the students through request and videos is also not correct; (vi) That not only has the Appellant not provided any coaching or training for the conduct of the test, but even otherwise the Department has not been able to substantiate that the Appellant has received any consideration for the alleged coaching or training; and (vii) That even the contents of the website were never relied upon in the show cause notice nor the Appellant was confronted with these documents. 9. Shri Vivek Pandey, learned Authorized Representative of the Department has, however, supported the impugned order and has submitted. (i) That the activity undertaken by the Appellant clearly falls in the category of "commercial training or coaching service; (ii) That the website clearly indicates that various course devices, test and seminars can be undertaken by the students de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed with IA from time to time under the name described in Part C of the Details Section ("Test Centers")" 13. Clause 5 of the agreement deals with IELTS Centre requirements and is as follows:- "5. IELTS Centre requirements IA Conduct 5.1. The controls exercised by IA (as and IELTS Test Partner) under this agreement in relation to the delivery and administration of IELTS are reasonable and necessary to protect the IELTS brand, the quality and integrity of the IELTS Test, and to maintain the global standards for the delivery of IELTS set by the IELTS Test Partners. IELTS Manuals of Procedure 5.2. The IELTS Centre will, and will ensure its Personnel, comply with the IELTS Manuals of Procedure at all times. Standards 5.3. The IELTS Centre will operate the Test Centres: (a) in accordance with applicable laws and the requirements of relevant Authorities; (b) to actively and diligently promote IELTS; and (c) with due care, skill and diligence and in a timely manner. Test Centre Costs 5.4. The IELTS Centre is responsible for bearing all costs associated with the Test Centres. Integrity principles 5.6. The IELTS Centre will, and will ensure that it and its P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome necessary to remove (temporarily or permanently) or replace any Administrators/ Test Delivery Personnel. Or to involve any other person in the administration of the Test Centers, the IELTS Centre will, as its own cost promptly provide a person who is of at loast equivalent skills, qualifications and experience to the outgoing Administrators/Test Delivery personnel. Examiners to be accredited 8.4 The IELTS Centre will only use a person to examine or mark IELTS Test candidates who is approved and certified by IA for both writing and speaking examinations (an Examiner). 8.5. The IELTS Centre will ensure that each Examiner. (a) Sings the confidentiality undertaking set out in the IELTS Manuals of Procedure before commencing work; (b) examine IELTS Test candidates in accordance with the IELTS Manuals of Procedure; and (c) complies with the IELTS Manuals of Procedure, the IELTS Code of Practice, the Examiners' terms of appointment and the reasonable directions of IA. Other personnel 8.6 The IELTS Centre will ensure its Personnel (including Examiners and invigilator): (a) sign and return the confidentially undertaking set out in the IELTS Manuals of Procedure before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levels, and for those seeking professional registration. IELTS General Training IELTS General Training is for test takers wishing to migrate to an English-speaking country (Australia, Canada, New Zealand, UK), and for those wishing to train or study at below degree level. 19. The test is an internationally recognized english language proficiency test and measures the ability of individuals to communicate in english across under four language skills, namely listening, reading, writing and speaking. A report for each of the four skills is made available after the test. The Appellant has enclosed as an annexure to the Appeal, a copy of letter sent to a candidate for the General Training Module Test as also for the Academic Module Test. It specifically mentions that the Appellant has received the test fee payment of Rs. 7,900/- against the IELTS Test. After mentioning the documents required, the candidate has been informed that the listening, reading and writing Test will be held on a particular date at a particular centre. 20. It has, therefore, been contended by learned counsel for the Appellant that there is no element of commercial training or coaching involved as the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate that it is the Appellant that will be providing such activity. Merely because the website of the Appellant informs the candidate that free support materials can be found on other sites cannot lead to an inference that the Appellant is providing such services. Likewise, the contents on the "face book" also do not convey that the Appellant is providing such service. In any view of the matter, the Appellant has not received any consideration for any of these alleged activities as is not only clear from the agreement but also from the receipts given to the students. What is important to notice is that the show cause notice dated 17 April 2013 alleges that the Appellant is providing training because the receipt raised by the Appellant mentions the name of the module as 'General Training Module'. This is a perverse inference because the name of the module is "General Training Module" and mere use of the word 'training' in this test module does mean that some sort of 'training' is imparted by the Appellant. 23. In paragraph 4.9 of the impugned order reproduced above the Commissioner rejects the contention of the Appellant that the fees paid by the students was for the conduct of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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