TMI Blog2021 (3) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority subordinate to the Tribunal is squarely bound by such a decision and that it is not open to him to go beyond it. The petitioner's counsel would state that the entire issue will have to be re-visited by the first respondent by associating the second respondent by invoking the power under Section 14 of the Central Excise Act, 1944 - That was a case arising under ESI Act. The authority had initiated the proceedings against the employer. But then, the employees were not associated either in individual or representative capacity. The Court felt that the statute is for the benefit of workmen and that therefore, they will have to be necessarily made a party. Thus, non-impleading of the second respondent in the adjudicating proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional buildings, he is not obliged to reflect the same in his returns or pay any service tax on the contract value received by him. However, the first respondent had a different perception. The first respondent issued notice dated 18.04.2013 for the period from April 2011 to March 2012 proposing to levy service tax together with penalty on the petitioner for the aforesaid work. The first respondent issued another show cause notice dated 19.05.2014 for the period from 01.04.2012 to 31.03.2013. The petitioner submitted his reply dated 27.05.2014 in response to the same. Rejecting the stand taken by the petitioner, the first respondent proceeded to hold that transaction in question is also amenable to levy of service tax and to that effect, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summarized the applicable principles in the following terms:- Thus, the law common to Section 10(23C) (iiiad) and (vi) may be summed up as follows: (1Where an educational institution carries on the activity of education primarily for education persons, the fact that it makes a surplus does not lead to the conclusion that it ceases to exist solely for educational purposes and becomes an institution for the purpose of making profit. (2) The predominant object test must be applied the purpose of education should not be submerged by a profit-making motive. (3) A distinction must be drawn between the making of a surplus and an institution being carried on for profit. No inference arises that merely because imparting education result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner had cited the instance of another contractor who rendered similar services for the second respondent trust and against whom, the proceedings were initially initiated but dropped by the adjudicating authority. Aggrieved by the said order passed by the authority, the department had filed an appeal in S.T.No.43 of 2011 before CESTAT, South Zonal Bench, Chennai. When the impugned order was passed, the said appeal was pending. Vide order dated 09.05.2018, the said appeal has been dismissed by the Tribunal. 7.The stand of the petitioner's counsel is that the first respondent being an authority subordinate to the Tribunal is squarely bound by such a decision and that it is not open to him to go beyond it. The petitioner's couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner on 27.03.2013 and 31.03.2013. This was well before passing of the impugned order. The first respondent does not appear to have taken note of the remittance made by the petitioner herein. 10.Therefore, on these twin grounds set out above, the order impugned in the writ petition is quashed. The matter is remitted to the file of the first respondent to pass orders afresh in accordance with law. The first respondent shall invoke his power under Section 14 of the Central Excise Act, 1944 and summon the second respondent and will render a finding as to whether the service rendered by the petitioner to the second respondent is a commercial or industrial service by applying the tests laid down by the Hon'ble Supreme Court in 2015 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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