2018 (8) TMI 1178 - AT - Service Tax

Franchise Service - Demand of Service Tax for the period 2003-04 to 2007-08 - Caution Deposit collected - difference in the figures in the Profit and Loss Account as well as the ST-3 returns - administrative materials and promotion materials sold to the Franchisees - material kit supplied by CSC Publications and Ramiah Publications. Franchise Service - Caution Deposit collected - Held that - For franchise services, the appellant has enclosed the challans in respect of the service tax paid on this count - the appellant has discharged the service tax and the demand is upheld. Franchise services - difference in the figures in the Profit and Loss Account as well as the ST-3 returns - Held that - The fact as to what is the reason for the difference has to be verified by the adjudicating authority and for this reason, matter remanded to adjudicating authority - matter on remand. Franchise Services - administrative materials and promotion materials sold to the Franchisees - Held that - The demand raised on the cost recovered from the Franchisees for supply of course materials and administrative materials cannot sustain and requires to be set aside, demand set aside. Franchise Services - Material kit supplied by CSC Publications and Ramiah Publications - Held that - It is settled law that study materials supplied cannot be included in the taxable value for levy of service tax. Thus, the demand raised on the ground of amount received by CSC Publications and Ramiah Publications for supply of study materials to the Franchisee cannot sustain and requires to be set aside - demand set aside. Commercial Coaching or Training Service - demand of service tax for the period 2003-04 to 2007-08 - difference in the figures shown in ST-3 returns and Profit and Loss Account - amount received for imparting training to government staff and private companies - amount received by the appellant for sale of course materials to students - computer training imparted to students - computer training has been imparted to schools as per the agreement entered into with the Education Department of Tamil Nadu - JDC Summer Classes - income received from computer rentals. Commercial Coaching or Training Service - difference in the figures shown in ST-3 returns and Profit and Loss Account - Held that - This issue also requires to be remanded to the adjudicating authority - matter on remand. Commercial Coaching or Training Service - amount received for imparting training to government staff and private companies - Held that - As per Notification No. 09/2003 and 01/2004 Computer Training Institutes were exempt from service tax only till 30.06.2004 and therefore, after 30.06.2004 they are liable to pay the service tax - the appellant is liable to pay service tax after 30.06.2004 on this count - appeal allowed in part. Commercial Coaching or Training Service - amount received by the appellant for sale of course materials to students - Held that - It is settled law that the study materials supplied cannot be subject to levy of service tax. Further, as per the Show Cause Notice itself, the amount is collected by sale of study materials to the students. No service tax can be levied on the transaction of sale and, therefore, the demand raised on this count requires to be set aside - appeal allowed, Commercial Coaching or Training Service - computer training imparted to students - Held that - Computer Training Institute would fall under Vocational Training Institute in terms of Notification No. 24/2004 until 16.06.2005 - the appellant is eligible for exemption up to 16.06.2005. The demand for the period up to 16.06.2005, therefore, requires to be set aside - the appellant is liable to pay service tax from 16.06.2005 along with interest. Commercial Coaching or Training Service - computer training has been imparted to schools as per the agreement entered into with the Education Department of Tamil Nadu - Held that - It is very much clear that the training imparted by the appellants is according to the syllabus, as approved by the Government of Tamil Nadu. Such training does form part of the course/curriculum of school education and the appellant is eligible for exemption under Notification No. 10/2003 - appeal allowed. Commercial Coaching or Training Service - JDC Summer Classes - Held that - the Ld. Counsel at the time of hearing submitted that the appellant is not contesting the same and has paid up the amount in respect of this demand. Commercial Coaching or Training Service - income received from computer rentals - Held that - The rent income received for leasing the computer hardware, etc., cannot be taxed under Computer Training Services. In any case, these agreements include imparting computer training to the students and therefore the benefit of exemption under Notification No. 10/2003 would be applicable to the appellant - demand set aside - appeal allowed. Business Auxiliary Services - demand of service tax due to rounding off - period 2003-4 to 2007-08 - the incentives received from M/s. Tally - sale of forms of Tamil Nadu Open University - amount of short paid tax by the appellant due to rounding off - penalties. Business Auxiliary Services - the incentives received from M/s. Tally - Held that - The said issue as to whether the incentives received for the use of software would be subject to levy of service tax, has been decided in the case of D. Pauls Consumer Benefit Ltd. Vs. C.C.E. 2017 (3) TMI 1019 - CESTAT NEW DELHI , where it was held that They are by using these GDS/CRS for booking tickets, receiving incentives from the said companies for every segment booked by them. Hence, the service provided by the assessee-Appellants has rightly been covered under the heading Business Auxiliary Service - the demand on this count is legal and proper and is upheld. Business Auxiliary Services - sale of forms of Tamil Nadu Open University - Held that - In the Show Cause Notice as well as the impugned order, it is seen that the appellant has purchased and sold the forms at the actual price. There are no ingredients attracting the levy of service tax under Business Auxiliary Services in this activity - demand do not sustain. Business Auxiliary Services - amount of short paid tax by the appellant due to rounding off - Held that - The Ld. Counsel has submitted that the appellant is not contesting the said demand. The same is upheld. Penalties - Held that - The issues involved in all the three services are mostly interpretational, especially with regard to the exemption Notification as to whether Computer Training Institute would be eligible for exemption as also with regard to the exemption under Notification No. 10/2003. Further, there were issues with quantification. Being interpretational issues, the penalties on the demands cannot sustain and require to be set aside - penalty set aside. Appeal disposed off.

Summary

Issues Involved:
1. Demand of service tax under Franchise Service.
2. Demand of service tax under Commercial Coaching and Training Service.
3. Demand of service tax under Business Auxiliary Service (BAS) and due to rounding off.
4. Imposition of penalties under Section 78 and Section 77 of the Finance Act, 1994.

Detailed Analysis:

I. Demand of Service Tax under Franchise Service (2003-04 to 2007-08):

1. Caution Deposit:
- The appellant has discharged the service tax liability on the caution deposit collected. The tribunal upheld the demand as the appellant provided evidence of payment.

2. Difference in Figures in Profit and Loss Account and ST-3 Returns:
- The appellant claimed the difference was due to service tax being payable on a realization basis while the P&L account was on an accrual basis. The tribunal found no such plea before the adjudicating authority and remanded the issue for verification.

3. Administrative and Promotion Materials:
- The demand was for materials sold to franchisees, which the tribunal held as a sale transaction not liable for service tax. The tribunal set aside this demand.

4. Course Materials by CSC Publications and Ramiah Publications:
- These materials were supplied by independent entities, and the tribunal held that their value could not be included in the appellant's taxable value. The demand was set aside.

II. Demand of Service Tax under Commercial Coaching or Training Service (2003-04 to 2007-08):

1. Difference in Figures in Profit and Loss Account and ST-3 Returns:
- Similar to the franchise service issue, this was remanded for fresh consideration by the adjudicating authority.

2. Training to Government Staff and Private Companies:
- The tribunal upheld the demand post 30.06.2004, as the appellant conceded liability after this date. The demand prior to this date was set aside due to applicable exemptions.

3. Sale of Course Materials to Students:
- The tribunal set aside the demand, holding that no service tax can be levied on the sale of study materials.

4. Computer Training to Schools (Sl. Nos. 4, 5, 6, and 8):
- The tribunal held that up to 16.06.2005, the appellant was eligible for exemption under Notification No. 24/2004. Post this date, the appellant was liable to pay service tax. The tribunal also found the appellant eligible for exemption under Notification No. 10/2003 for training forming part of the school curriculum. Demands for the period up to 16.06.2005 were set aside, and the appellant was held liable post this date.

5. JDC Summer Classes:
- The appellant did not contest this demand and had paid the amount. The tribunal upheld the demand.

III. Demand of Service Tax under Business Auxiliary Service & Demand Due to Rounding Off (2003-4 to 2007-08):

1. Incentives from Tally:
- The tribunal upheld the demand, following precedents that incentives for the use of software are subject to service tax under BAS.

2. Sale of TNOU Forms:
- The tribunal set aside the demand, holding that the sale of forms did not constitute a taxable service under BAS.

3. Rounding Off:
- The appellant did not contest this demand, and the tribunal upheld the same.

IV. Imposition of Penalties:

- The tribunal found that the issues were mostly interpretational and involved quantification disputes. Therefore, penalties under Sections 77 and 78 of the Finance Act, 1994, were set aside.

Conclusion:

- The tribunal remanded the issue of differences in ST-3 returns and P&L accounts for fresh consideration.
- Demands set aside included those related to administrative materials, course materials by independent entities, sale of course materials to students, and sale of TNOU forms.
- Penalties were set aside in toto.
- The tribunal allowed the Department's Miscellaneous Application for a change in the cause title due to the introduction of GST.

Pronouncement:
- The judgment was pronounced in open court on 17.08.2018.