TMI Blog2023 (12) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... ion offered by the Institute approved by the DGCA have been conferred some value in the eyes of law. A distinction has been made under the relevant Statutes and the Rules framed thereunder between an approved institute and an un-approved one. Since a successful candidate from an approved institute is entitled to enforce the right conferred on him by Statute, the inference drawn was that the Course Completion Certificate offered by such Institute was recognized by law. The learned counsel for the respondents is justified in contending that in view of low tax effect, the guidance under Instruction dated 22.08.2019 issued by the Department of Revenue was followed. He submits that since Instruction dated 11.05.2011 had not been held to be illegal or ultra vires, the withdrawal of the proceedings on the basis of earlier Instruction dated 17.08.2011 was justified. Maintainability of the writ petition on the ground that an alternate remedy is available - HELD THAT:- It is found that the present writ petition was filed on 10.09.2014 raising a challenge to Instruction dated 11.05.2011 and the show cause notice dated 18/21.10.2013. Since Instruction dated 11.05.2011 was also the subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise, Custom and Service Tax Commissionerate, Nagpur requiring the petitioner-M/s National Flying Training Institute Private Limited to show cause why the petitioner should not be classified under the taxable category of Commercial Coaching or Training Centre as defined by Sections 65(26) and (27) of the Finance Act, 1994. Consequentially, service tax for the period from September-2008 to June-2012 has been demanded from the petitioner. 2. The petitioner is registered under the Companies Act, 1956 and is being run as a Joint Venture between Airport Authority of India and National Flying School, Mauritius. It claims to provide aviation training to the candidates seeking to obtain Commercial Pilot License CPL. With a view to ensure that Flying Training Institutes have the requisite capability of imparting initial flying training to the candidates who seek to obtain CPL, the Civil Aviation Requirement CAR issued under Rule 133A of the Aircraft Rules, 1937 has laid down the procedure as well as minimum requirements with regard to infrastructure, procedure and manpower for undertaking flying training activities. An approval of the Director General of Civil Aviation DGCA is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineering (supra) had been consistently followed by other High Courts as well as the jurisdictional Tribunals. In view of this adjudication, it was submitted that issuance of the show cause notice was without any legal basis. 4. The learned counsel referred to the provisions of Section 73(1) of the Act of 1994 to submit that the limitation prescribed for issuance of the show cause notice was eighteen months from the relevant date or the taxable event in respect of the period when service tax was not levied or paid. This period could be extended to five years if the non-levy or non-payment was on account of any fraud, collusion, wilful mis-statement or suppression of facts. The reference in the show cause notice dated 18/21.10.2013 to the period prior to eighteen months was without jurisdiction and hence the claim as made in the said notice for the period from October-2008 to April-2012 was barred by limitation. It was thus submitted that the challenge to the show cause notice ought to be entertained in the light of the law laid down in Calcutta Discount Company Limited Versus Income Tax Officer Another [1961(41) ITR 191] and Whirlpool Corporation Versus Registrar of Tradem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itute approved by the DGCA have been conferred some value in the eyes of law. A distinction has been made under the relevant Statutes and the Rules framed thereunder between an approved institute and an un-approved one. Since a successful candidate from an approved institute is entitled to enforce the right conferred on him by Statute, the inference drawn was that the Course Completion Certificate offered by such Institute was recognized by law. The observations in paragraphs 25 and 27 of the said judgment are relevant and the same read as under :- 25. We are of the view that the Act, the Rules and the CAR, having provided for grant of approval to such institutes and having laid down conditions for grant of such approval and having further provided for relaxation of one year in the minimum practical training required for taking the DGCA examination, have recognized the Court Completion Certificate and the qualification offered by such Institutes. The certificate/ training/qualification offered by Institutes which are without approval of DGCA would not confer the benefit of such relaxation. Thus, the certificate/training/qualification offered by approved Institutes, has by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow tax effect, the guidance under Instruction dated 22.08.2019 issued by the Department of Revenue was followed. He submits that since Instruction dated 11.05.2011 had not been held to be illegal or ultra vires, the withdrawal of the proceedings on the basis of earlier Instruction dated 17.08.2011 was justified. Even if it is held that the proceedings before the Hon ble Supreme Court were withdrawn on account of low tax effect, as stated above since there is no justifiable reason to take a different view from the one taken by the Delhi High Court, we are inclined to follow the ratio of the decision in Indian Institute of Aircraft Engineering (supra). 8. Coming to the objection raised to the maintainability of the writ petition on the ground that an alternate remedy is available for being availed by the petitioner, we find that the present writ petition was filed on 10.09.2014 raising a challenge to Instruction dated 11.05.2011 and the show cause notice dated 18/21.10.2013. Since Instruction dated 11.05.2011 was also the subject matter of consideration by the Delhi High Court vide its decision in Indian Institute of Aircraft Engineering (supra) that was decided on 21.05.2013, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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