TMI Blog2020 (3) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... nt lies to the Supreme Court and not to the High Court, this court ordinarily, would not entertain such a dispute in exercise of powers under article 226 of the Constitution of India. Whether the dispute involved in the present cases is a classification dispute? - HELD THAT:- A dispute can be said to be a classification dispute provided it involves a question regarding the entry under which particular goods or services fall. In the present cases, insofar as the nature of the services is concerned, there is no dispute. The question involved in these cases is whether the institutions to which the services are supplied by the petitioners are educational institutes. In the opinion of this court, the question as to whether an institution is an educational institution or not, is strictly speaking, not a classification dispute - Moreover, in both these cases there is no dispute on facts. On a perusal of the impugned show-cause notices, it is apparent that based on admitted facts, the only dispute raised is a purely legal issue, namely, whether the institutions to which the services are supplied by the petitioners are educational institutions. Moreover, the relevant material on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide such services would qualify under the term educational institution - It appears that according to the respondents the term educational institution envisages only those institutions which actually enroll students and impart education. In paragraph 7.6 of the show-cause notice, it has been stated that on examining the functions and duties of the above said Boards/University, it appears that these Boards/University are functioning as organisations which are entrusted with the work of creating more schools/colleges/institutes under their affiliation, to prepare the syllabus of education for such institutes, to conduct the academic tests and exams, to appoint examiners/supervisors for smooth conduct of examination, to declare the results of such examinations etc. On a broader aspect, these University/Boards work more like managerial organisations to plan the syllabus of education and conduct of examination for institutes affiliated under them. For this purpose, the Boards/University procure services of other service providers for such examination related and result processing services. Whether the narrow meaning sought to be assigned to the word education by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt, the petitioners in both these petitions were equally entitled to hold such a view. Therefore, it cannot be said that the petitioners had, with an intention to evade payment of service tax, misstated that the organisations to which they had provided services are educational institutions to claim incorrect and ineligible exemption. The larger period of limitation, therefore, could not have been invoked in the facts and circumstances of the present cases. Petition allowed - decided in favor of petitioner. - R/SPECIAL CIVIL APPLICATION NO. 20748 of 2018 With R/SPECIAL CIVIL APPLICATION NO. 7414 of 2019 - - - Dated:- 29-1-2020 - MS. HARSHA DEVANI AND MS. SANGEETA K. VISHEN JJ. Appearance : Ms. Disha N Nanavaty(2957) For the Petitioner(S) NO. 1,2 Mr. Ankit Shah(6371) For the Respondent(S) NO. 1 Mr. Devang Vyas(2794) For the Respondent(S) NO. 2 Mr. Nirzar S Desai(2117) For the Respondent(S) NO. 3 ORAL JUDGMENT (PER: HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. The learned senior standing counsel waive service of notice of rule on behalf of the respective respondents forthwith. Since the controversy involved in both these petitions is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d assessment order came to be passed, which is subject matter of appeal before the competent authority. 2.5 During the period when the provisions of Chapter V of the Finance Act, 1994 were in force, no show-cause notice was issued or was pending concerning the liability of the petitioner to pay service tax. After Chapter V of the Finance Act, 1994 came to be omitted, the petitioners have been served with the impugned show-cause notice dated 20.04.2018 purported to have been issued under section 73 of the Finance Act, 1994 read with sections 142(8)(a) and 174 of the CGST Act. 2.6 Being aggrieved, the petitioners have filed the present petition. 3. Insofar as facts of Special Civil Application No. 7414 of 2019 are concerned, the first petitioner is a partnership firm and is engaged in the business of transportation and provides services as a transport contractor. The petitioner firm is registered with the Service Tax Range, Mehsana Division, Commissionerate Ahmedabad-III under rent-a-cab service. The petitioners provide vehicles for conduct of state examination in the following Departments/Boards of the Government of Gujarat: (i) Gujarat Secondary and Higher Secondar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isations referred hereinabove. 3.5 After Chapter V of the Finance Act, 1994 came to be omitted, the first respondent Senior Intelligence Officer, Director General of GST Intelligence, by a communication dated 30.11.2017 initiated an inquiry regarding short payment/non-payment of service tax for providing services by the petitioner firm by considering the recipients as educational institutes. The said communication was, thereafter, followed by further communications. 3.6 By a communication dated 15.12.2017, the petitioners brought to the notice of the first respondent that the services provided by the petitioner firm are only to educational institutions and such services are exempted. It was also brought to the notice of the said respondent that the Central Excise and Service Tax Audit-1 Commissioner had undertaken audit for the period commencing from November 2010 to September 2015 and thereafter, from April 2015 to March 2017. The audit report for the first audit had since been provided and the subsequent report was pending. 3.7 It is the case of the petitioners that without taking into consideration the response submitted by them, the first respondent addressed repeate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution of India would not be maintainable before this court, more so, considering the fact that the question involved in the case would have an impact on the determination of rate of duty and would, therefore, fall within the ambit of section 35L of the Central Excise Act, 1944, which provides for an appeal against any order passed by an Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment, shall lie to the Supreme Court. Since the contention raised relates to the very maintainability of the petitioner, such contention needs to be dealt with at the outset. 4.1 The learned Senior Standing Counsel for the respondents submitted that if the show-cause notices were to culminate into orders-in-original, the appeals would lie to the Commissioner (Appeals) and then to the Appellate Tribunal. It was submitted that since, the dispute involved in these cases relates to the determination of a question having a relation to the liability to service tax of the services provided by the petitioners, in view of the provisions of section 35L of the Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion that the services rendered by the respondents will fall in the category of goods transport agency but not cargo handling service . In the aforesaid judgment, the contract was only for supply of labour and it was the specific case of the assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be cargo handling service . 19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the parties to whom services have been provided by the petitioners, viz. Boards and University are educational institutions. 5.1 Referring to the contents of the show-cause notices, it was pointed out that there are no disputed questions of fact and that, on the basis of admitted facts, the court is required to examine as to whether or not, the Boards and the University are educational institutions. If the Boards and University are found to be educational institutions, the services provided to them are exempt. 5.2 Reliance was placed upon the decision of the Supreme Court in Deputy Commissioner Central Excise v. Sushil Co., (2016) 13 SCC 223, wherein, the court held thus: 3. The respondent challenged this show-cause notice by filing a writ petition in the High Court inter alia, contending that no services were provided by the respondent by entering into the aforesaid contract, as it was only supplying labour and the labour was not doing any work of packing, unpacking, loading and unloading of any cargo. The High Court, by the impugned judgment, has accepted the plea of the respondent, resulting into allowing the writ petition and quashing the show-cause notice. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as the High Courts, including the decision of the Supreme Court in Union of India v. Guwahati Carbon Limited, 2012 [278] ELT 26 , and bearing in mind the principles of law enunciated in the said decisions found that there were good grounds to overrule the preliminary objection of the revenue and proceeded to decide the issues raised in the petition. 5.4 It was submitted that the decision of the Supreme Court in Coastal Containers Transporters' Association, (supra) does not lay down that a writ petition against a show-cause notice is not maintainable in law. It was contended that the judgment is peculiar to the facts of that case wherein there were factual disputes; the disputes regarding classification of services rendered required consideration of the facts of each case depending on the nature of services rendered and the contract entered into. 5.5 It was further submitted that the decision of the Supreme Court in Union of India v. Guwahati Carbon Limited (supra), would also not be applicable to the facts of the present case inasmuch as in that case, the writ petition sought to challenge the assessment order. Since, a statutory appeal against the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court as also the statements made before us in the counter-affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show-cause notice. The writ petition, in our opinion, was maintainable. 5.7 Reference was made to the decision of the Supreme Court in Oryx Fisheries (P) Ltd. v. Union of India, (2010) 13 SCC 427, wherein, it has been held thus: 27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. 32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show-cause notice. 33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it. 34. A somewhat similar observation was made by this Court in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182. In that case, this Court was dealing with a show-cause notice-cum-charge-sheet issued to an employee. While dealing with the same, this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al to the Supreme Court and section 35G of the said Act which provides for appeal to the High Court, which are extracted herein below for ready reference: 35-L. Appeal to Supreme Court.- (1) An appeal shall lie to the Supreme Court from- (a) any judgment of the High Court delivered- (i) in an appeal made under section 35-G; or (ii) on a reference made under Section 35-G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on reference made under section 35-H, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. (2) For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners are educational institutions. Moreover, the relevant material on the basis of which such question can be decided is already on record. 6.6 This court is of the view that the decision of the Supreme Court in Union of India v. Coastal Container Transporters Association, (supra) would not be applicable to the facts of the present cases, inasmuch as, in that case the court had firstly found that the dispute involved in the case was a classification dispute; and secondly, that even from the contents of the show-cause notices, it could not be said that there are no factual disputes; whereas the present cases do not involve any classification dispute, nor do they involve any disputed questions of fact. 6.7 In Deputy Commissioner Central Excise v. Sushil Co., (supra) on which reliance has been placed on behalf of the petitioners, the Supreme Court held thus: we find that the High Court has simply gone by the contract in question, which was entered into between the respondent and M/s Birla Corpn. Ltd. and taking into consideration all the averments, which were made in the show-cause notice, on the basis of admitted facts, it has come to a conclusion that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and duties of the Maharashtra Secondary and Higher Secondary Education Boards under the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965. 6.9.4 In paragraphs 7.6.1 and 7.6.2 of the show-cause notice, the following findings have been recorded: 7.6.1 Further on examining the functions and duties of the above said Boards/University it appears that these Boards/University are functioning as organizations which are entrusted with the work of creating more schools/colleges/institutes under their affiliation, to prepare the syllabus of education for such institutes, to conduct academic tests and exams, to appoint examiners / supervisors for smooth conduct of examination, to declare the results of such examinations etc. On a broader aspect these University/Boards work more like managerial organization to plan the syllabus of education and conduct of examination for the institutes affiliated under them. For this purpose, the Boards/University procure the services of other service providers for such examination related and result processing services. On careful reading of the definitions of educational institutions as given under the Finance Act, 1994 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) education as a part of an approved vocational education course. Therefore, they do not appear to be educational institutions as per the definition in Finance Act, 1994. Therefore, the claim of exemption from payment of service tax by M/s Sahitya Mudranalaya Private Limited, Ahmedabad for providing services to such Boards/University considering them as educational institute does not seem sustainable. 6.9.7 In paragraph 8 of the said show-cause notice, after going through the statements and documents submitted by the petitioner, it is recorded that it is a service provider who is engaged in providing of taxable services, viz. result processing and other pre and post examination related services, which appear to be taxable under the statutory provisions mentioned thereunder. Reference is made to section 66B of the Finance Act, 1994 and it is recorded that since the said services do not figure in the negative list provided under section 66D specifically clause (l) and are not exempted services under Notification No. 25/2012 dated 20.06.2012, the said services continue to be taxable under the Finance Act, 1994. 6.10 Thus, categorical conclusive findings have been recorded i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to initiate any fresh proceedings under the repealed Act, that is Chapter V of the Finance Act, 1994. Since a question of jurisdiction has been raised, which goes to the root of the matter, it needs to be answered first. 7.1 Mr. Mihir Joshi and Mr. Mitul Shelat, learned counsel for the petitioners, submitted that the respondent authority has no jurisdiction to initiate fresh proceedings after the omission of Chapter V of the Finance Act (on 20.04.2014); and after deletion of Entries 92 and 92C in the 7th Schedule (List 1 Union List) (by Constitution (101st Amendment) 2016, dated 16.09.2016). It was submitted that section 174(2)(e) of the CGST Act does not authorise initiation of fresh/de novo investigation, inquiry and is restricted to continuation of such investigation, inquiry, verification, which are pending on the date of the repeal. It was submitted that since no proceedings were initiated under Chapter V during time when it was in force, section 174 of the CGST Act does not authorise initiation of any proceedings under Chapter V of the Finance Act, which has been omitted. It was submitted that the impugned show-cause notice is, therefore, without authority and juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r enforced as if the Act had not been so amended or repealed. 30. The Constitution Bench of the Supreme Court in Kolhapur Canesugar Works Ltd (supra) had also referred and followed the earlier pronouncement of the Constitution Bench in Rayala Corporation (P) Ltd (supra) and, therefore, the proposition laid down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) can either be a clarification or it can be argued to be in conflict with the pronouncement in paragraph 17 of Rayala Corporation (P) Ltd (supra). Even if it is taken to be a conflict, but the decision having been rendered by a Bench of equal strength, the proposition that is more appealing is to be taken into consideration. The proposition in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) providing that the proceedings under an omitted enactment continues to remain in the event of there being a savings clause in the enactment bringing about such omission appears to be more appealing that the proposition in Rayala Corporation (P) Ltd (supra) providing for a discontinuance of such proceeding. 31. As the provisions of Section 174(2) also is clearly applicable in respect of an omission of the enactment und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le the continuation of the investigation, inquiry, verification etc. that were made/to be made under Chapter V of the Finance Act. It was, accordingly, submitted that the petitioners are not justified in contending that the respondents have no jurisdiction or authority in law to issue the impugned show-cause notice. 7.4 Section 173 of the CGST Act reads as under: 173. Amendment of Act 32 of 1994.- Save as otherwise provided in this Act, Chapter V of the Finance Act, 1994 shall be omitted. 7.5 Thus, by virtue of section 173 of the CGST Act, Chapter V of the Finance Act, 1994, which makes provision for service tax, came to be omitted. 7.6 Section 174 of the CGST Act reads as under: 174. Repeal and saving.- (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Additional Duties of Excise (Textiles and Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters referred to in sub-sections (1) and (2) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal. 7.7 Thus, by virtue of section 173 of the CGST Act, Chapter V of the Finance Act, 1994 stands omitted. Sub-section (2) of section 174 of the CGST Act provides that the amendment of Finance Act, 1994 shall not - (e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed. 7.8 Thus, clause (e) of sub-section (2) of section 174 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution to mean an institution providing services specified in clause (l) of section 66D of the Finance Act, 1994 . 8.2 Reference was made to clause (l) of section 66D of the Finance Act, 1994 as well as substituted clause (oa), which came to be substituted by Notification No.9 of 2016-ST dated 01.03.2016. 8.3 The attention of the court was invited to various notifications/circulars issued from time to time, reference to which, shall be made at an appropriate stage. 8.4 It was submitted that the sole ground on which exemption is sought to be denied to the petitioners is that the service recipients are not educational institutions. It was submitted that the service recipients are educational institutions as the authority itself has identified the nature of functions and duties being performed by the service recipients and noticed that the service recipients are involved in prescribing syllabus, conducting examination and awarding qualifications. Each of these functions is integrally associated with education and the recipients would, therefore, clearly come within the purview of the term educational institutions . In support of such submission, the learned counsel plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination, self-monitoring and self-criticism. 8.5 Reference was made to the decision of the Supreme Court in the case of Nidhi Kaim v. State of M.P., (2016) 7 SCC 615 , for the proposition that the examination is considered as a common tool around which the entire education system revolves. 8.6 Reference was also made to the decision of the Supreme Court in State of T.N. v. K. Shyam Sunder, (2011) 8 SCC 737 , which emphasizes the importance of common curriculum and prescription thereof as an integral and essential requirement of education. 8.7 Reliance was also placed upon a decision of Orissa High Court in Secondary Board of Education, Orissa v. Income Tax Officer, Ward E , Cuttack, [1972] 86 ITR 408. 8.8 It was submitted that the Supreme Court as well as different High Courts have considered the nature and functions being discharged by Boards and authorities constituted by the State Government and have held them to be educational institutions and the petitioners are entitled to claim exemption under Serial No.9 of the Mega Exemption Notification No.25/2012-ST dated 20.06.2012. 8.9 Reference was made to an order dated 23.08.2018 passed by the Gujara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned notice seeks to invoke extended period of limitation in respect of period from 01.10.2013 to 31.03.2016; however, the impugned notice does not disclose any finding of existence of the jurisdictional fact namely that the duty has not been paid by reasons of either fraud or collusion or willful misstatement or suppression of facts or contravention of any provisions of the Act or rules made thereunder with the intent to evade payment of duty. It was submitted that it is well settled that there has to be something positive other than a mere failure to disclose a transaction and pay tax thereon before the assessee is saddled with any liability. It was submitted that it is equally well settled that when the assessee is guided by the action of the authority itself, it is impermissible for the department to invoke the extended period of limitation. It was submitted that in the present case, the authority was well aware and has itself found that the services provided by the petitioners to the service recipients are exempted services. This is pursuant to the adjudication up to the level of Commissioner (Appeals). Even, in the course of audit undertaken for the period for which, noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing recovery of refund is challenged by the petitioner before the Tribunal. It was contended that having accepted that the services provided by the petitioners to the service recipient is an exempted service under Notification No.25/2012 dated 20.06.2012, the respondent authority has no jurisdiction to issue the subject notice alleging non-payment of service tax in relation to the selfsame services provided to the selfsame recipients during the period of the selfsame notification. 9.3 It was accordingly urged that the petition deserves to be allowed in terms of the reliefs prayed for. 10. Opposing the petitions, Mr. Ankit Shah, learned Senior Standing Counsel for the respondents, invited the attention of the court to the services covered under the negative list of services as contained in section 66 of the Finance Act, 1994, to submit that the services that are provided thereunder that fall within the negative list of services. It was contended that the services provided by the petitioners for various examination related services to the State Education Board, State Technological University and State Council of Examination, do not fall within the scope and ambit of clause (l) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification, the organisations to which the services have been provided by the petitioners, do not qualify as educational institutions. 10.3 Insofar as invocation of the extended period of limitation is concerned, the attention of the court was invited to the contents of the impugned show-cause notices, to submit that the foundation was duly laid in the impugned show-cause notices wherein, it has been observed that the petitioners have deliberately contravened the provisions of the Finance Act, 1994 and rules made thereunder with an intention to evade the payment of service tax. It was, accordingly, urged that the petitions being devoid of merits, deserve to the dismissed. 11. From the facts and the contentions as noted herein above, it is evident that the main ground on which the petitioners are sought to be denied exemption from service tax in respect of the services provided by them to the Boards/University is that according to the respondents, the Boards/University are not educational institutions. 12. The facts are not in dispute, inasmuch as the nature of services provided by the petitioners in Special Civil Application No.20748 of 2018 are examination related activiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing services, namely- (l) services by way of - (i) pre-school education and education up to higher secondary school or equivalent; (ii) education as a part of a curriculum for obtaining a qualification recognized by any law for the time being in force; (iii) education as a part of an approved vocational education course. 13.4 Entry 9 of Mega Exemption Notification No.25/2012-ST dated 20th June, 2012, which was effective from 01.07.2012 to 31.03.2013, reads as under: 9. Services provided to or by an educational institution in respect of education exempted from service tax, by way of,- (a) Auxiliary educational services; or (b) Renting of immovable property; Definition (f) - auxiliary educational services means any services relating to imparting any skill, knowledge, education or development of course content or any other knowledge - enhanced activity, whether for students or the faculty, or other services which educational institutions ordinarily carry out themselves but may obtain as outsourced services from any other person, including services relating to admission to such institution, conduct of examination, catering for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a curriculum for obtaining a qualification recognised by any law for the time being in force; or education as a part of an approved vocational education course; and therefore, the activities carried out by the Boards/University do not fall within the ambit of clause (l) of section 66D of the Finance Act, 1994 or clause (oa) of the Mega Exemption Notification. 13.11 It is further the case of the respondents that auxiliary education services, that is, conduct of examination and result processing are exempted only if such services are provided to an educational institution. It, however, is not in dispute that the services provided by the petitioners are in the nature of auxiliary education services as defined under clause (f) of the definitions paragraph of the Mega Exemption Notification. 13.12 Notification No.06/2014 - Service Tax dated 11.07.2014 defines educational institution to mean an institution providing services specified in clause (l) of section 66D of the Finance Act, 1994. Therefore only those entities which provide such services would qualify under the term educational institution . 13.13 It appears that according to the respondents the term educational ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocational education course. 13.15 Thus, the nature of services referred to in clause (l) of section 66D of the Finance Act, 1994 and clause (oa) of the Mega Exemption Notification are verbatim. 13.16 The question is, whether the narrow meaning sought to be assigned to the word education by the respondents is required to be adopted, namely only those institutions which directly impart education to the students; or a broader meaning which includes even those institutions which are connected with the education of those students. 13.17 At this juncture, reference may be made to certain decisions on which reliance has been placed on behalf of the petitioners. 13.17.1 In Gujarat University v. Krishna Ranganath Mudholkar, (supra), the Supreme Court held that the expression education is of wide import and includes all matters relating to importing and controlling education. 13.17.2 In P. A. Inamdar v. State of Maharashtra, (supra), the Supreme Court held thus: 81. Education according to Chambers Dictionary is bringing up or training; strengthening of the powers of body or mind; culture . 82. In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edn., 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. K. Shyam Sunder, (supra) the Supreme Court held thus: 21. There has been a campaign that right to education under Article 21-A of our Constitution be read in conformity with Articles 14 and 15 of the Constitution and there must be no discrimination in quality of education. Thus, a common syllabus and a common curriculum is required. The right of a child should not be restricted only to free and compulsory education, but should be extended to have quality education without any discrimination on the ground of its economic, social and cultural background. 13.18 Thus, the Supreme Court, in the above decisions, has held that: - the expression education is of wide import and includes all matters relating to imparting and controlling education; - the examination is always considered as one of the major means to assess and evaluate candidate's skills and knowledge be it a school test, university examination, professional entrance examination or any other examination. - Candidate's fitness for his further assignment whether in studies or employment is, therefore, judged on the basis of his performance in the examination. It is for this reason, the exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minations, the education of school students would not be complete, so is the case with college students, whose education would be complete only when the University conducts examinations and awards degrees or diplomas. It is the School Boards which issue the Secondary and Higher Secondary School Certificates after holding examinations and the University which confers degrees/diplomas etc. after holding examinations. Unless a student holds a certificate issued by a Board, his or her school education would not be complete, similarly, without a degree or diploma being conferred by the University, college education would not be complete. Therefore, examinations are an indispensable component of education, without which such education is incomplete. Therefore, to say that Boards/Universities are not educational institutions would amount to divorcing examinations from education. 13.23 Clause (l) of section 66D of the Finance Act may be examined in the light of the above. Sub-clause (i) of clause (l) refers to pre-school education and education up to higher secondary school or equivalent. When the sub-clause says education up to higher secondary school or equivalent, it goes without s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (oa) of Entry No.2 of the Mega Exemption Notification No.25/2012-ST dated 20.06.2012. 15. Once it is held that the service recipients are educational institutions, the impugned show-cause notices are rendered unsustainable. Therefore, the question as to whether the respondents were justified in invoking the extended period of time on the ground that the petitioners had, with an intention to evade payment of service tax, misstated that these organisations are educational institutions to claim incorrect and ineligible exemption, is rendered more or less academic. Nonetheless the court deems it fit to answer this question also. 16. Insofar as the validity of extension of the extended period of limitation is concerned, it may be noted that in case of M/s. Rajan Travels, namely the petitioner in Special Civil Application No. 7414 of 2019, the petitioner had first paid the service tax and thereafter claimed refund on the ground that the services provided by it were exempt from service tax. By an order-in-original dated 01.10.2014, it was held that in view of the Notification No. 25/2012-ST dated 20.06.2012 as amended, the services in question were exempted and that the petitione ..... 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