TMI Blog2019 (7) TMI 1480X X X X Extracts X X X X X X X X Extracts X X X X ..... Present for the Department: Shri N. Bhanu Kiran, Authorized Representative. ORDER PER: P. VENKATA SUBBA RAO. 1. These two appeals are filed by the assessee and the department against the same impugned Order-in-Appeal No. 89/2010 (H-II) S.Tax dated 30.11.2010 and hence are being disposed of together. 2. The assessee is challenging the demand of service tax upon them and penalty imposed equal to the service tax for the period 01.07.2004 to 31.03.2008 in their appeal ST/636/2011 whereas the department is aggrieved by the first appellate authority allowing the assessee the benefit of notification 24/2004-ST dated 10.09.2004 read with notification 19/2005- ST dated 07.06.2005 for the period 10.09.2004 to 15.06.2005. According to the department the benefit of this exemption notification is not available to the assessee. 3. The facts of the case in brief are that the assessee herein is imparting commercial training or coaching services related to software and are registered with the Central Excise department and are filing periodical returns. Intelligence was gathered by the department that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey claimed exemption for the value of study materials appeared incorrect because they were raising a single invoice on the students for the services rendered and the amount collected is a composite amount for training and there is no separate cost of study materials or examination fee. It was further found that there is no price printed on the study materials provided by the assessee. During the present proceedings, learned counsel for the assessee showed us sample copies of the study materials and also agreed that there is no separate price printed on the study material. A show cause notice was issued to the assessee on 15.05.2009 demanding differential service tax along with interest and proposing to impose penalties under Sec.76, 77 78 of the Finance Act, 1994. This demand was confirmed vide Order-in-Original No. 37/2009 dated 17.08.2009. On appeal by the assessee, the Commissioner (Appeals), vide Order-in-Appeal No. 79/2009 (H-II) ST dated 27.11.2009, remanded the matter back to the original authority with a direction to pass the order after following principles of natural justice. In pursuance of this order, Order-in-Original No. 38/2010 (denovo) (S.Tax) dated 12.05.2010 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that the books in question are not even priced. Under these circumstances, we find the assessee is liable to discharge service tax on the entire amount collected from the students as fees for commercial training and coaching conducted by them. The next question to be decided is whether the first appellate authority was correct in holding that the assessee was entitled to the benefit of notification 24/2004-ST dated 10.09.2004 read with notification 19/2005-ST dated 07.06.2005. This notification reads as follows: Exemption to vocational/recreational training institute for providing commercial training or coaching services Notification No. 24/2004 ST Dated 10-9-2004 [ As amended by Notification No. 19/2005 ST dated 07-06-2005] In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable services provided in relation to commercial training or coaching, by, - (a) a vocational training institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004-ST restricted the exemption only to vocational training institute and recreational training institute. There was no exemption notification for computer training institutes which, according to the department, is a conscious decision of the Government. The subsequent proviso introduced vide notification 19/2005 dated 17.06.2005 is only by way of explanation/clarification and even without the proviso no benefit was available for computer training institutes. 9. Learned counsel for the assessee, on the other hand, argues that the proviso was introduced with effect from 07.06.2005 specifically stating that the benefit of this notification is not available for commercial training or coaching by computer training institute. It was not an explanation but a proviso. The proviso cannot be presumed to exist prior to this date. In the absence of proviso the presumption is the benefit of notification extends to computer training institutes also. Therefore, they are fully entitled to the benefit of exemption notification. We do find that notification 09/2003-ST dated 20.06.2003 provided for exemption to a vocational training institutes, computer training institutes as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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