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2018 (10) TMI 763 - AT - Service TaxCommercial Coaching Services - Failure to pay Service tax - intent to evade or not? - Extended period of limitation - Benefit of N/N. 9/2003 and N/N. 24/2004 up to 16/06/2005 - Held that - The issue decided in the case of Sunwin Techno Solutions Pvt. Ltd. 2010 (9) TMI 71 - SUPREME COURT OF INDIA wherein the Supreme Court has held that the Notification No.19/2005-ST dt. 07/06/2005 (effective from 16/06/2005) is merely clarificatory in nature and that the services provided by computer training institutes are liable to service tax w.e.f. 01/07/2004 only. Further, the entire demand is barred by limitation because the show-cause notice was issued on 23/03/2007 demanding the service tax for the period 01/07/2004 to 15/06/2005 by invoking the extended period of limitation. Tribunal in the case of Gargi Consultants Pvt. Ltd. 2013 (5) TMI 695 - CESTAT NEW DELHI , held that extended period of limitation cannot be invoked when the appellant was providing computer training services and had not paid service tax for the period July 2004 to March 2005. Appeal allowed - decided in favor of limitation.
Issues:
- Appeal against the Commissioner(Appeals) order upholding the Order-in-Original and rejecting the appellant's appeal. - Claim of exemption under Notification No.9/2003 and Notification No.24/2004. - Allegations in the show-cause notice regarding service tax. - Applicability of the extended period of limitation. - Interpretation of the notification and its impact on the demand for service tax. Analysis: The appellant, engaged in offering Job Oriented Industry standard Courses, claimed exemption under Notification No.9/2003 and Notification No.24/2004 until 16/06/2005. Post an amendment in Notification No.24/2004, the appellant registered under Commercial Coaching Services and started paying service tax. The show-cause notice alleged the appellant was not entitled to the notification's benefit, being merely clarificatory. The original authority confirmed the demand, upheld by the Commissioner(Appeals). The appellant's consultant acknowledged the lack of merit due to the Supreme Court's ruling in the case of Sunwin Techno Solutions Pvt. Ltd., stating that services by computer training institutes are taxable from 01/07/2004. The consultant argued the demand was time-barred, as the notice lacked allegations of fraud or suppression under Section 73(1) proviso. Citing legal precedents like CCE Vs. HMM Ltd. and Gopal Zarda Udyog Vs. CCE, the consultant contended that failure to pay tax does not imply fraud. Moreover, he argued that the extended limitation period cannot apply in cases involving interpretational issues, citing cases like Suntex Business Solutions Pvt. Ltd. Vs. CCE,C&ST. The Appellate Tribunal found the demand barred by limitation, noting the absence of allegations in the show-cause notice and the settled interpretation of the notification by the Supreme Court in the case of Sunwin Techno Solutions Pvt. Ltd. The Tribunal emphasized that the extended period cannot be invoked in cases of interpretational issues, as seen in the Gargi Consultants Pvt. Ltd. case. Therefore, the Tribunal allowed the appeal, setting aside the impugned order due to the demand being time-barred.
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