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TMI Blog2011 (4) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... anan, Special Counsel Per: M V Ravindran: This stay petition is filed for waiver of pre-deposit of the amounts confirmed by the adjudicating authority along with interest and penalties. The said stay petition was disposed of by Stay Order No.521/2010 dt. 14/6/2010 vide which this Bench had allowed the application for waiver of the pre-deposit of the amounts involved and stayed the recovery thereof only on the ground of limitation till the disposal of the appeal. 2. Aggrieved by such a stay order, Revenue preferred an appeal before the Hon'ble High Court of Andhra Pradesh in Central Excise appeal No.301 of 2010. The said appeal was disposed of by the Hon'ble High Court on 11/01/2011 by setting aside the stay order passed by this Bench with the specific direction, which is reproduced below:- In our considered opinion, the order of the CESTAT is not in accordance with the law laid down by the Supreme Court. The learned CESTAT failed to focus its consideration on prima facie case, balance of convenience and irreparable loss. It did not consider the aspect of undue hardship which must exist for exercising power under Section 35F of the Central Excise Act. Even assuming th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009-TIOL-214-CESTAT-AHM 4. Magnus Society Hyderabad Vs. CC CE, Hyderabad 2008-TIOL-1812-CESTAT-BANG He would submit that the ratio during the relevant period as has held by the Court was that any institution which is a charitable institution and rendering the services of the commercial and coaching centre, would not be covered under the definition as it was not a commercial institute. It is his submission that the Hon'ble High Court of the Andhra Pradesh had directed that the appellant should be put to conditions in their Order in Central Excise appeal No.301 of 2010. It is his submission that during the pendency of the proceedings, on 21/2/2011, the office of the Chief Commissioner of Customs Central Excise had in fact issued a letter indicating that the provisional attachment of the immovable property is done by the CCE ST vide letter dt. 4/3/2009 is extended for further 6 months i.e. from 4/3/2001 to 3/9/2011. It is his submission that the property which has been attached by the lower authorities in order to safeguard the interest of the Revenue is about Rs.27 crores. It is his submission that recently Hon'ble High Court of Karnataka in the case of United Telecom Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raining or Coaching Centre", services provided by the assessee will be covered under the definition and they are liable to pay the service tax dues. It is his submission that appellant was running coaching centers outside the state of Andhra Pradesh and had paid the service tax for few months at those centers. It is his submission that aggrieved by confirmation of the demand, the appellant had approached the Tribunal, which directed the appellant to deposit 50% of the amount of duty confirmed and remanded the matter back to the Commissioner(Appeals). It is his submission that the Hon'ble Tribunal had distinguished the facts of the case of the appellant from the case of M/s. Great Lakes Institute relied upon by the appellant. It is his submission that this would indicate that the appellant knew very well that their activity attracts service tax w.e.f. 1/7/2003 under Section 65(105) (zzc) of the Finance Act, 1994. He would rely upon the decision of the Larger Bench of the Tribunal in the case of Agauta Sugar Chemicals Vs. CCE, Noida [2010(19) STR 849 (Tri. LB)] for the proposition that there may be absence of notice which may involve the procedure but it will not take away the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 65(105)(zzc) - "Taxable service means any service provided or to be provided to any person, by a commercial training or coaching centre in relation to commercial training or coaching. 8. It is also undisputed that the above said definition was in question in the following decisions of this Tribunal:- a) Great Lakes Institute of Management Ltd. Vs. CST, Chennai 2008-TIOL-134-CESTAT-MAD b)ICFAI Vs. CCE, Hyderabad 2008-TIOL-2036-CESTAT-BANG c) Ahmedabad Management Association Vs. CST, Ahmedabad 2009-TIOL-214-CESTAT-AHM d) Magnus Society Hyderabad Vs. CC CE, Hyderabad 2008-TIOL-1812-CESTAT-BANG In the said decisions, this Tribunal has held as under:- a. In Great Lakes Institute of Management Ltd. case, it is held: "The provision of education by an institution will attract service tax only if the institution is a commercial concern. A commercial concern is run with the sole object of making profit. In the case of the appellants, no individual gains any profit by its operations. The MOA clearly spells out that no income earned by the company shall be paid by way of dividend, bonus or otherwise by way of profit to any member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o provide minimum quality of life to the people of a country. As the demand for these services cannot be met by the Public Sector alone, private sector fills the gap. For most of them in the private sector, health education are lucrative business. However, we find that education in the instant case is not a business. The primary object of GLIM is to impart education. Profit making is not its main motive. The refrain of the several judicial authorities cited is that profit motive characterizes a commercial concern as against general public utility in the case of a charitable organization. Therefore GLIM is not a commercial concern and the training or coaching provided by GLIM is not a commercial activity. In the view we have taken of the issue on merits we do not consider it necessary to examine the question if the demand is time barred. In the circumstances, we set aside the impugned order and allow the appeal filed by M/s. Great Lakes Institute of Management." b. In ICFAI case, it is held: "Summing up, in our view, (i) the appellants are institutions imparting higher education; (ii) they cannot be brought under the definition of 'Commercial Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he profits earned cannot be distributed among the members and in case of dissolution any surplus would have to be given away to another society or charitable trust engaged in similar activities. In the case of AMA, while the members are expected to contribute towards liability, they do not get any share of the surplus. Members also cannot expect any dividend and in the case of AMA they are expected to contribute every year a certain amount as a membership fee or contribute a certain amount for life membership without any specific returns. All these factors and the memorandum of the association of AMA very clearly show that it is not a commercial concern at all. Further we also find that both the judgments cited by the ld. Advocate and mentioned above clearly are applicable to the present case also. Therefore, we have to hold that AMA is not a commercial concern." d. In Magnus Society Hyderabad case, it is held: "12. Summing up: We are of the view that while deciding whether an institution imparts commercial training or coaching, the totality of the circumstances has to be gone into it. Just because an institution collects fees from the students, one cannot come to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given." It can be seen from the above reproduced portion of the judgment of their lordships, they have clearly directed the lower courts that merely because the court indicated the principles, that does not give licence to the forum to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. 10. We find that the Hon'ble Supreme Court in the case of Ravi Gupta (supra), in para-10 have recorded the following:- "10. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein had failed to bring to the notice of the Hon'ble High Court or before us when the matter was first heard, as regards the attachment of the property by the lower authorities vide their attachment letter dt. 04/03/2009. It is also seen from the attachment order that the property which has been attached is immovable property and is in the form of land and the value, as worked out by the lower authorities or the authorities by whom the property attached, is approximately Rs.27 crores as on that date. In our view, the property which has been attached by the lower authorities can be considered as enough security to safeguard the interest of the Revenue. Since we have come to a conclusion that during the relevant period, the appellant could have entertained a view that he is not liable to discharge service tax on 'commercial or coaching center' being a charitable institution, and also keeping in mind the direction of the Hon'ble High Court and the fact that the lower authorities have attached property worth Rs.27 crores and the said attachment has been extended till 03/09/2011, we find that the interest of the Revenue is secured. In view forgoing, we allow the application for waive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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