TMI Blog2023 (11) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry 66 of Notification No.12/2017-CT (Rate) dated 28.06.2017, or not - HELD THAT:- There is no ambiguity in the language in Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018. Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018 is applicable only for services relating to examination or conduct of examination by petitioner colleges in W.P.No.11038 of 2022 W.P.No.5967 of 2023 and not to work relating to affiliation. The Hon ble Supreme Court has repeatedly held that the operation of the notification has to be judged not by the object which the rule making authority had in mind but the express words it has employed effectuate the legislative intent. In UNION OF INDIA VERSUS WOOD PAPERS LTD. [ 1990 (4) TMI 55 - SUPREME COURT] , the Hon ble Supreme Court held that at the stage of applicability, the Notification has to be construed strictly and the ambit should not be widened or extended. It further held that only once that stage is crossed, the notification should be construed liberally that is other techni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned ruling was obtained by Bharathiyar University under Section 97 of CGST Act, 2017 r/w analogues provisions of the TNGST Act, 2017, from the 1st respondent Authority for Clarification and Advance Ruling (ACAR). 5.By the impugned order dated 19.11.2020, the first respondent,Authority for Clarification and Advance Ruling Authority (ACAR), has concluded as follows:- In view of the foregoing discussions, we rule as under:- Ruling The composite supply of sale of application, registration of course, inspection, etc with the Principal Supply of affiliation provided by the Bharathiar University to its constituent colleges (viz) Self-financing and management colleges for which they collect 1. Application Form fees; 2. Application Fees (Application* registration fee ( each/course/section)); 3. Inspection fees(each course/Section); 4. Affiliation Fee for each course; 5. Affiliation Fee for each additional section; 6. Initial Affiliation fee to start an institution; 7. Permanent Affiliation fee to the College; 8. Continuation of affiliation for each course; 9. Increase in intake for each course for permanent basis processing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -CGST-DIV-III-COMMRTE-PUDUCHERRY impugned in W.P.No.24261 of 2022 filed by the Pondicherry University is liable to be dismissed on account of alternate remedy. The petitioner can file a statutory appeal before the Appellate Authority under Section 107 of the GST Act, 2017, if the petitioner so wishes to challenge the same. 11.That apart, the decision relied upon by the petitioners in all these cases are on the strength of the orders passed by this Court earlier in Madurai Kamaraj University vs. Joint Commissioner, O/o, the Commissioner of GST Central Excise, Madurai , (2021) 94 GSTR 192 and Madurai Kamaraj University Vs. Joint Commissioner, Office of the Commissioner of GST and Central Excise, Madurai , 2021-VIL- 639-MAD-ST. The decision in W.P.(MD).No.20502 of 2019 has not been accepted by the Department and the Department is in appeal. 12.This Court in W.P.No.15333 of 2020 has also taken a view that Mega Exemption Notification No.25/2012-ST dated 20.06.2012 with effect from 01.07.2012 as amended by Notification No.6/2014-ST dated 11.07.2014 and Notification No.9/2016-ST dated 01.03.2016 and Section 66 D(l) of the Finance Act, 1994 was not applicable to the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, an agreement between the landlord and the tenant whereunder the obligation to discharge and pay the property tax was cast upon the tenant. Mr Salve submitted that the principle of the judgment would apply to the case before us. 12. Mr.Vellapally, learned counsel for the respondent- Union of India, very fairly and rightly, did not dispute that the burden of the increase in excise duty, by reason of the reclassification of the said ammonium nitrate, would fall upon the appellants, and that, therefore, the appellants were entitled to agitate the validity of such reclassification and this could not be done in the civil suit that was contemplated by the High Court. 13. There is, in our view, no doubt that the reclassification of ammonium nitrate by the order of the Central Board dated November 1980, casts upon the appellants the obligation to pay the excise duty that is leviable as a result. Such obligation does not arise merely by reason of an agreement between SAIL and the appellants but also by virtue of the provisions of Chapter X of the Central Excise Rules, 1944. The appellants suffer adverse civil consequences and have, therefore, the locus to challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olleges; (b) there was an additional grant of exemption by introduction of sub item (v) to item (b); (c) the disqualification from the exemption contemplated under sub clause (b) was confined to services contemplated by sub clause (i), (ii) and (iii). This did not affect the grant of exemption under sub clause (iv). (d) an additional disqualification was introduced in respect of services under sub item (v) of item (b) to institutions providing services by way of pre-school education and education up to higher secondary school or equivalent or education as a part of an approved vocational education course. There was no disqualification in respect of sub item (iv) in this paragraph. 21.It is submitted that the determination of applicability of exemption will depend on the language of exemption under Section 11, which is relevant and not the test conceived by Section 8 of the Central Goods and Services Act, 2017. 22.It is submitted that Notification No.12/2017-CT(Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT(Rate) dated 25.01.2018 exempts services relating to admission or to conduct of examination. This activity in relation to admission will include aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o an activity on which the specified activity depend and therefore, an activity in relation to admission and examination was exempted. 32.In support of the present writ petitions, the respective petitioners have also placed reliance on the following decisions of this Court and Hon'ble Supreme Court:- (i) Madurai Kamaraj University vs. Joint Commissioner, O/o, the Commissioner of GST Central Excise, Madurai , (2021) 94 GSTR 192; (ii) Manonmaniam Sundaranar University vs. The Joint Director (GST Intelligence), Coimbatore reported in 2021-VIL-635-MADST. (iii) M/s.Rajiv Gandhi University of Health Sciences vs. Principal Additional Director General Directorate General of GST Intelligence Bengaluru, 2022(8) TMI 707; (iv) Bangalore University Jnanabharathi Campus vs. Principal, Additional Director General Directorate of GST Intelligence Bengaluru, 2022 (8) TMI 167; (v) Doypack Systems Pvt.Ltd vs. Union of India and Others, 1988(2)SCC 299; (vi) T.K.Kalayana Mandapam Association vs. Union of India and Others , 2004(5)SCC 632; (vii) Hansraj Gordhands vs. H.H.Dave, AIR 1970 SC 755; (viii) Government of Kerala vs. Mother Superior Adoration Convent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 CT (Rate) dated 25.01.2018 are applicable to an educational institution in exclusion of institutions providing services by way of pre-school education and education up to higher secondary school or equivalent. To that effect, corresponding G.O.Ms.No.13 CT R (B) Department dated 25.01.2018 has been issued by the Government of Tamil Nadu. 37.It is submitted that the 4th respondent Bharathiar University has approached the 1st respondent invoking Section 98 of the TNGST Act, 2017 and obtained an order from the 1st respondent. The petitioners being affiliated to the 4th respondent and running the Institution, have derived right only from the 4th respondent. The 4th respondent has not preferred any appeal against the order of the 1st respondent under Section 100 of the TNGST Act, 2017. 38.In other words, the activity of affiliation is to monitor whether the institution possesses the required infrastructures in terms of space, technical prowess, financial liquidity, faculty strength, well equipped laboratory etc., and thereby eligible for the privileges to conduct the course/programme of study for the degree/title extended by the University to the students enrolled in such i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st respondent. 45.It is submitted that the determination of the applicability of the exemption will depend on the language of the exemption under Section 11, which is relevant and not the test conceived by Section 8 of the Central Goods and Services Act, 2017. 46.It is submitted that the power under Section 11 to exempt is not solely guided by the comments of the Fitment Committee. The two fold parameters are recommendation of the council and public interest. The public interest sought to be protected is on the basis of the language employed by the Government through an exercise of power under Section 11. 47.It is submitted that the any service in relation to admission which will encompass a connected activity of affiliation and prayed for allowing W.P.No.11038 of 2022 and W.P.No.5967 of 2023. 48.I have considered the arguments advanced by the learned counsel for the petitioners and the learned counsel for the respondents. I have also considered Notification No.11/2017-Central Tax (Rate) dated 28.06.2017 Notification No.12/2017-C.T.(Rate) dated 28th June 2017 as amended by 02/2018-C.T.(Rate) dated 25.01.2018 and the provisions of Central Goods Services Tax Act, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s No. 20/2017-C.T. (Rate), dated 22-8-2017; No. 24/2017-C.T. (Rate), dated 21-9-2017; No. 31/2017-C.T. (Rate), dated 13-10-2017; No. 46/2017-C.T. (Rate), dated 14-11-2017; No. 1/2018-C.T. (Rate), dated 25-1-2018; No. 13/2018- C.T. (Rate), dated 26-7-2018; No. 17/2018-C.T. (Rate), dated 26-7-2018; No. 27/2018-C.T. (Rate), dated 31-12-2018; No. 30/2018-C.T. (Rate), dated 31-12-2018; No. 3/2019-C.T. (Rate), dated 29-3- 2019; No. 10/2019-C.T. (Rate), dated 10-5-2019; No. 20/2019-C.T. (Rate), dated 30-9-2019; No. 26/2019-C.T. (Rate), dated 22-11-2019; 2/2020- C.T. (Rate), dated 26-3-2020; 2/2021-C.T. (Rate), dated 2-6-2021; 4/2021-C.T. (Rate), dated 14-6- 2021; 6/2021-C.T. (Rate), dated 30-9-2021; No. 15/2021-C.T. (Rate), dated 18-11-2021; and 22/2021-C.T. (Rate), dated 31-12-2021; No. 3/2022-C.T. (Rate), dated 13-7-2022 and No. 5/2023-C.T. (Rate), dated 9-5-2023.] 51.Notification No.12/2017 CT (Rate) dated 28.12.2017 exempts supply of few services from payment of Goods and Service Tax under Central Goods and Services Tax Act, 2017. 52.Entry 66 to Notification No.12/2017-C.T.(Rate) dated 28th June 2017 as amended by 02/2018-C.T.(Rate) dated 25.01.2018 prescribes nil rate of tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Tax (Rate) dated 28.06.2017 reads as under:- 3.Explanation.- For the purposes of this notification,- (i) Reference to Chapter , Section or Heading , wherever they occur, unless the context otherwise requires, shall mean respectively as Chapter, Section and Heading in the Scheme of Classification of Services. (ii) Chapter, Section, Heading, Group, or Service Code mentioned in Column (2) of the Table are only indicative. 4. This notification shall come into force on the 1st day of July, 2017. 55.Entry No.81 corresponds to Heading 9992. Heading 9992 deals with Education Services. Entry No.66 to Notification No.12/2017- Central Tax(Rate) dated 28.06.2017 is some what pari materia with Entry No.9 to Notification No.25/2012-ST dated 20.06.2012 as amended by Notification No.6/2014 and Notification No.9/2016-ST dated 01.03.2016 which fell for consideration in W.P.No.15333 of 2020. As mentioned above, in W.P.No.15333 of 2020, the exemption was held not available to Pondicherry University. 56.For the purpose of discussion in these cases, it would suffice to state that there are two categories of exemptions in Entry 66 to Notification No.12/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of examination by, such institutions; b.to an educational institution, by way of i. Transportation of students, faculty and staff; ii. Catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory; iii. Security or cleaning or housekeeping services performed in such educational institution; iv. Services relating to admission to, or conduct of examination by, such institution; up to higher secondary :* Provided that nothing contained in entry (b) shall apply to an educational institution other than an institution providing services by way of pre-school education and education up to higher secondary school or equivalent Same Minor changes (in Bold) Same substantial changes Definition Clause 2(oa):- Entry 9 to Notification No.25/2012 ST dated 20.06.2012 Definition Clause 2(y) Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 Remarks Heading : 9992 2(oa) educational institution means an institution pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r makes it abundantly clear that nothing contained in Entry (b) shall apply to an educational institution other than an institution:- (i) providing services by way of pre - school education; and (ii) education [up to higher secondary school or equivalent]. Thus, exemption was applicable only for supply of the services to specified recipient of services alone. 64.Thus, Entry (b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 applied only to services to educational institution by way of pre-school education and education up to higher secondary school or its equivalent to an educational institution. 65.Entry (b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 do not apply to services provided to colleges, even if such affiliation services were to fall under the category of services relating to admission to, or conduct of examination by, such institution as it is restricted to up to higher secondary. 66.Thus, to begin with benefit of Entry No.66 (b) (iv) to Notification No.12/2017-Central Tax (Rate), dated 28.06.2017 was confined to services provided to an educational institution providing such educational services by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted, namely :- Provided further that nothing contained in subitem (v) of item (b) shall apply to an institution providing services by way of,- i) pre-school education and education upto school or equivalent or ii) education as a part of an approved vocational education course. 71.By Notification No.2/2018-CT (Rate) dated 25.01.2018, expression upto Higher Secondary was deleted from Entry (b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017. 72.Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 as it stood at its inception prior to amendment and after amendment vide Notification No.2/2018-CT (Rate) dated 25.08.2018 is tabulated below in the following table for convenience and comparison:- Sl. No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Between 01.07.2017 and 25.01.2018 After 25.01.2018 till date after amendment vide Notification No.2/2018- CT (Rate) dated 25.08.2018 66 Headin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing services by way of pre-school education and education up to higher secondary school or equivalent. Provided further that nothing contained in sub-item (v) of item (b) shall apply to an institution providing services by way of: i. pre-school education upto school or equivalent; or ii. education as a part of an approved vocational education course. * deleted by Notification No.2/2018-CT (Rate) dated 25.01.2018 * Bold portion in the last column were inserted / amended vide Notification No.2/2018-CT (Rate) dated 25.01.2018 73.By deleting the above expression upto Higher Secondary , Entry No.66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 read similar to Entry 9 to Mega Exemption Notification No.25/2012-S.T dated 20.06.2012 as amended by Notification No.6/2014-ST (Rate) dated 11.07.2014 and Notification No.9/2016-ST (Rate) dated 01.03.2016. 74.Relevant portion of Entry 9 to Mega Exemption Notification No.25/2012-S.T dated 20.06.2012 for the purpose of this case as it stood after amendment by Notification No.9/2016-ST (Rate) dated 01.03.2016 and Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 as it ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 28.02.2017 by the amendment vide Notification No.2/2018 CT (Rate) dated 25.01.2018, the proviso made it clear that the benefit in Entry 66 (b) (i) (ii) (iii) was confined only to services provided to institution providing services by way of pre-school education and education up to higher secondary school or equivalent. 76.Deletion of up to Higher Secondary to Entry 66 (b) (iv) to Notification No.12/2017-CT (Rate) dated 28.02.2017 by Notification No.2/2018-CT (Rate) dated 25.01.2018 however did not mean service provided to the constituent colleges such as petitioner in W.P.No.11038 of 2022 W.P.No.5967 of 2023 by the Bharathiar University were exempted after amendment to Entry (b) (iv) to Entry No.66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 vide Notification No.2/2018 CT (Rate) dated 25.01.2018. 77.There is no ambiguity in the language in Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018. Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018 is applicable only for services relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign words and without subtracting any words therefrom. In Britannia Industries Ltd. Vs. Commissioner of Income Tax and another , 278 ITR 546 (SC) it was held by the Apex Court that when the language of a statute is clear and unambiguous, the Courts are to interpret the same in its literal sense and not to give a meaning which would cause violence to the provisions of the statute. 83.This view has been followed by the Hon ble Supreme Court in several cases. Some of the decisions rendered by the Hon ble Supreme Court in the context of taxing statute, wherein the above principle has been reiterated are enumerated as under:- i. Commissioner of Central Excise, Raipur vs. Sepco Electric Power Construction Corporation , 2022(062) GSTL 0385 SC; ii.U nion of India vs. Mrgadarshi Chit Funds(P) Ltd. , 2017(003)GSTL 0003 SC; iii. Commissioner of Cus.(Import), Mumbai vs. Dilip Kumar Company , 2018(361)ELT 0372 SC; iv. Shabina Abraham vs. Collector of Central Excise and Customs , 2015(322)ELT 0373 SC; v. M.P.Steel Corporation vs. Commissioner of Central Excise , 2015(319)ELT 0373 SC; vi.D ujodwala Resins Terpenes Ltd., 2014(311)ELT 0892 G.O.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended by the Sales Tax Authorities. 85.Although, with effect from 25.01.2018 although the expression upto higher secondary was deleted from Notification No.12/2017-CT (Rate) dated 28.06.2017, yet it has to be held that the services provided to the petitioner by Bharathiyar University services was not relating to admission to, or conduct of examination by the petitioner. Only such ancillary services provided in relation to admission or to conduct of examination by the petitioner alone would have been exempted from payment of tax under the respective GST enactment. 86.Therefore, even on a demur service relating to admission to, or conduct of examination by Educational Institution as defined in Clause 2 (y) to the Notification No.12/2017 CT ( Rate) dated 28.06.2017 cannot apply to service provided in relation to grant or renewal of affiliation of the petitioners in W.P.No.11038 of 2022 W.P.No.5967 of 2023 to the Bharathiar University. 87.The service of admission or conduct of examination cannot be equated on par with service provided to the petitioners in W.P.No.11038 of 2022 and W.P.No.5967 of 2023 by Bharathiar University. Similarly, service provided by the respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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