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2019 (10) TMI 412

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..... h on 26-2-2010, has introduced an Explanation wherein, it is stated that "commercial" means "any training or coaching that is provided for consideration irrespective of the presence or absence of any profit motive." The said Explanation is applicable retrospectively, which means, it is applicable from 1-7-2003 onwards. Thus, the second argument of the Learned Counsel also fails. Benefit of N/N. 24/2004-S.T., dated 10-9-2004 - third argument put forward by the Learned Counsel is that the training imparted by them is in the nature of vocational training - HELD THAT:- Vocational training means "the training that imparts skills to the candidates in order to enable the candidate to seek employment or undertake self- employment, directly after such training." In the present case, the training is imparted to employees, who have already been recruited by the appellant as drivers and conductors. Therefore, the definition of "Vocational Training" will not be applicable for the activity of training rendered by the appellant - Thus, there are no grounds to set aside the demand on merits of the case. Extended period of limitation - HELD THAT:- There was s .....

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..... onductors and the cost incurred for giving the training is recovered from them, which is nothing but reimbursement of expenses only. It is not the case of the department that the appellant has given training to third party i.e., persons other than their own employees. Since they are not into business of giving training to any third person they don't fall under the definition of "Commercial Training or Coaching Centre" defined in Section 65(27) of the Act and hence, it will not attract any service. 2.1 The adjudicating authority himself in his order admitted the fact that the amounts were collected from drivers and conductors only. Therefore, the relationship between them is of employer and employee and not a service provider and recipient. In other words, they had not given any Commercial Training or Coaching to any outsiders, to attract service tax. 2.2 The Board vide Circular No. 59/8/2003, dated 20-6-2003 in para 2.2.3, clause 4 has clarified that giving training to their employees will not attract service tax. However, if an employer engages any Commercial Coaching Centre to give commercial training or coaching for imparting some training to its employees, then th .....

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..... terms of Notification No. 24/2004-S.T. Hence, in this case also, they are Vocational Training Institute and exempted from payment of Service Tax up to 26-2-2010. 3. Since appellants are not a commercial concern, they were of the bona fide belief and understanding that the service tax is not payable by them, as it will apply only to commercial concern and not to Government undertakings and their understanding has been substantiated in the case laws. The retrospective amendment supports their bona fide belief. Further, prior to the insertion of the explanation the definition of "taxable service" in the Finance Act, 2010 was amended by adding an Explanation with retrospective effect. Hence, extended period is not invocable as held in the following decisions : (i) PR. Commr. of Ser. Tax v. M/s. Shree Chanakya Education Society - 2018 (362) E.L.T. 741 (Bom.). (ii) M/s. Unitech Southcity Educational Charitable Trust v. C.S.T (Adj)., New Delhi - 2018 (8) G.S.T.L. 295 (Tri. - Del.); and (iii) National Institute of Bank Management v. Commr. of C. Ex., Pune-III- 2013 (32) S.T.R. 340 (Tri. - Mum.). 3.1 In the following decisions, it was held that in case of Government undertakings .....

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..... inition as well as circulars were very clear, the appellants cannot take shelter by contending that they were under a bona fide belief that their activity is not subject to levy of service tax. The show cause notice issued invoking the extended period is legal and proper. 8. Heard both sides. 9. The issue is with regard to the demand of service tax under the category of "Commercial Training or Coaching Service". For better appreciation, the relevant definitions are reproduced hereinbelow :- (i) The term "Commercial Training or Coaching" is defined in section 65(26) of the Finance Act, 1994 as under :- "Commercial Training or Coaching" means any training or coaching provided by a Commercial Training or Coaching Centre." (ii) The term "Commercial Training or Coaching Centre" is defined in section 65(27) of the Act as under :- "(27) "Commercial Training or Coaching Centre" means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes but .....

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..... "any training or coaching that is provided for consideration irrespective of the presence or absence of any profit motive." The said Explanation is applicable retrospectively, which means, it is applicable from 1-7-2003 onwards. Thus, the second argument of the Learned Counsel also fails 11.2 The third argument put forward by the Learned Counsel is that the training imparted by them is in the nature of vocational training and, therefore, they are eligible for the exemption as per Notification No. 24/2004-S.T., dated 10-9-2004. Vocational training means "the training that imparts skills to the candidates in order to enable the candidate to seek employment or undertake self- employment, directly after such training." In the present case, the training is imparted to employees, who have already been recruited by the appellant as drivers and conductors. Therefore, the definition of "Vocational Training" will not be applicable for the activity of training rendered by the appellant. We, therefore, find any no grounds to set aside the demand on merits of the case. 12. The Learned Counsel for appellant has argued on the ground of limitation. It is stressed by .....

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