TMI Blog2009 (4) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... - 21-4-2009 - M.V. RAVINDRAN, JUDICIAL MEMBER and T.K. JAYARAMAN, TECHNICAL MEMBER M.V.S. Appa Rao for the Appellant. V.P.C. Rao for the Respondent. ORDER T.K. Jayaraman, Technical Member. - This appeal has been filed against the Order-in-Appeal No. 8/2007 (V-II) ST, dated 20-8-2007, passed by the Commissioner of Central Excise and Customs (Appeals), Visakhapatnam. 2. Heard both the sides in the matter. 3. The appellants are imparting training to students for appearing in various competitive examinations. The services mainly "Commercial Training and Coaching" are liable to service tax with effect from 1-7-2003. They collected an amount of Rs. 81,74,000 from the students appearing for EAMCET for the year 2003 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which become taxable subsequently, service tax has to be paid on the value of service attributable to the relevant month/quarter which may be worked out on pro rata basis." The logic of the Commissioner is that though the payment for coaching was received before 1-7-2003 (the date on which this service became taxable), part of the coaching was provided after 1-7-2003. Therefore a service provider should pay service tax for the value of taxable service. As regards the Mess Charges, the Commissioner has reasoned that the service tax is liable to be paid on the gross amount and there is no provision made in the said section for claiming any abatement. In view of this, he has upheld the order of the lower authority. The appellants are highl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007] 8 STT 58 (New Delhi-CESTAT). (iii) The show-cause notice was received by the appellants on 27-5-2005 whereas the issue relates to July 2003 under section 71(1) of the Finance Act, 1994 at the material time. The normal period is one year and, therefore, the show-cause notice suffers from time bar. (iv) The Assistant Commissioner referred to Audit objection in Para 4 of the Order-in-Original. It is well-settled position that in any show-cause notice issued on the basis of Audit objection, extended period cannot invoked. The following case laws were relied on:- (a) Vikram Ispat v. CCE 2007 (8) STR 559 (Trib.-Mum.). (b) Cambay Organics (P.) Ltd. v. CCE 2007 (217) ELT 586 (Trib.-Ahd.). (v) The show-cause notice does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gross amount charged for taxable service shall include any amount received towards the taxable service before, during or after provision of such services. In fact, this provision was introduced for the first time by way of Explanation 3 of section 67 of the Finance Act, 1994 on 13-5-2005, which reads as follows: "For the removal of doubt it is hereby declare that the gross amount charged for taxable service shall include any amount received towards the taxable service before, during or after provision of such services." For the first time only with effect from 13-5-2005, there is provision for including the amount received even prior to rendering of service in the gross amount for the purpose of service tax. In the present case, the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like to emphasis that there is no provision for inclusion of any amount whatsoever collected by the appellants. There should always be a nexus between the amount collected and services rendered. The Mess charges have been collected for availing the facility of the mess. The mess is meant for providing food to the trainees. It cannot be brought under the category of receipt for 'Commercial Training or Coaching' and subject to service tax. Further we find that the show-cause notice was issued based on some Audit objection. There is no justification for invoking the longer period. Therefore, the demand is also hit by time bar. In view of the above findings, we do not find any merit in the impugned order. The demand is not sustainable. Once th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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