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TMI Blog2013 (1) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... aining provided by the appellant is taxable under the category of "Commercial Coaching or Training" as defined in section 65(26) and section 65(27) and made taxable under 65 (105) (zzc). Since such taxes were not paid, Revenue issued Show Cause Notice demanding service tax for consideration received during the period 01-04-2005 to 31-03-2010 by issuing Show Cause Notice dated 21-10-11. After adjudication an amount of Rs.99,33,882/- along with interest and penalties is confirmed against the appellant. Aggrieved by the order of the Commissioner, The appellants have filed appeal in this Tribunal along with a stay petition for waiver of pre-deposit of dues for admission of the appeal. There is a cross appeal filed by Revenue contesting that cum-tax value should not have been extended. 3. The Counsel for appellant that the training provided by them is not of a commercial nature. The persons attending the classes are not attending the classes on their own volition. The participants do not pay for the classes. It is the banks which pay for the services. According to them the training is in the nature of continued education and is intended for imparting professional knowledge to employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Bang.) 6. The Counsel argues that the position that emerges is that any education cannot be classified as "Commercial Coaching or Training" and only coaching or training to increase skills or passing of any examination etc were intended to be taxed and not imparting of any professional knowledge to employees required to do work in the course of their employment. The appellants argue that the training provided by the appellants is on par with training provided by the assessees involved in the above decisions of the Tribunal. 7. The Counsel argues that since there were many decisions of the Tribunal holding that the type of training provided by the appellant cannot be considered as "Commercial Coaching or Training" a Show Cause Notice issued on 21-10-2010 demanding tax for the period 01-04-05 to 31-03-2010 is substantially time barred. Therefore he requests that the appeal be admitted without pre-deposit of any dues. 8. Opposing the prayer, the Ld A. R. for Revenue submits that the decisions relied upon by the Counsel were given for the reason that the Institutes conducting the Training were not driven by profit motive. Section 65 (105) (zzc) has been amended by Finance Act 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-clause and in clauses (26), (27) and (90a) shall include any centre or institute, by whatever name called, where training or coaching is imparted for consideration, whether or not such centre or institute is registered as a trust or a society or similar other organisation under any law for the time being in force and carrying on its activity with or without profit motive and the expression "commercial training or coaching" shall be construed accordingly; 11. The matter has been under dispute in very many cases. The retrospective amendment made by Finance Act 2010 which added explanation under 65 (105) (zzc) (highlighted above) makes it clear that the issue is not to be decided with reference to the legal constitution of the institute, whether it is a charitable society, whether it is a co-operative society with no profit motive etc. But this explanation does not add any clarity as to what would be the import of the word "commercial" used in these definitions. It prima facie does not mean that the training should be in respect of commerce because coaching for entrance examinations subjected to tax under this head is not in relation to commerce. So it appears that the word has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant cannot be treated on par with the above institutions (No offence meant). We are not inclined to hold that the activities rendered by them would fail within the ambit of Coaching or Training. In our view, the fact that Income Tax Department has given them exemption is very relevant. We do not agree with the department that that point is not at all relevant. In that case legislature could have taxed all training and coaching. They need not have used the word 'commercial.' The very fact the word commercial has been used indicates that the word 'commercial' Qualifies the Commercial coaching or training centre. It doesn't qualify coaching or training. It qualifies the centre. As long as the institution is registered under the Societies Registration Act and also exempted from income-tax, it cannot be considered as a commercial centre. Therefore, no service tax is leviable under the category of Commercial Coaching or Training." Extracts from the decision of Ahmedabad Management Association "4.10 The view taken in the ICFAI case as well as in GLIML case is that to call a particular training or coaching commercial training or coaching, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld by the Apex Court as reported at Commissioner v. Administrative Staff College of India - 2010 (20) S.T.R. 3117 (S.C.) and the decision in the case of Ahmedabad Management Association has been set aside by the Apex Court and remanded for denovo consideration in the light of the retrospective amendment made by Finance Act, 2010 as reported at Commissioner v. Ahmedabad Management Association -2011 (21) S.T.R. J54 (S.C). 15. Having considered all the aspects above we are of the prima facie view that the word "commercial" in definitions at section 65 (26) and 65 (27) and 65 (105) (zzzc) cannot be considered to be superfluous and the explanation added by Finance Act, 2010 may not be a sufficient reason to take a view that the impugned training to be a "commercial training". 16. We also note that substantial part of the demand is confirmed invoking extended period of five years and such extended period may not be available while demanding short paid taxes on account of such interpretational issues. 17. So we waive the requirement of pre-deposit of dues for admission of the appeal and there shall be stay on collection of dues arising from the impugned order during the pendency o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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