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TMI Blog2018 (12) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... ISE, AURANGABAD [2012 (6) TMI 721 - CESTAT, MUMBA], where it was held that since the expression is not used in the notification and the fact that the books sold are of another entity, we do not find any reason to deny the benefits of the Notification No.12/2003-ST - the demand of ₹ 45,919/- for supply of study materials for the period 2004-05 and 2005-06 cannot sustain. Franchisee Service - Renting of Immovable Property Service - Demand of service tax - Held that:- the demands of service tax under Franchisee Service amounting to ₹ 1,23,927/- and Renting of Immovable Property Service amounting to ₹ 1,57,598/- with interest have already been conceded by the Ld. Advocate and are therefore upheld. The appellants will be required to pay up these liabilities also with interest thereon. As the demand of ₹ 7,13,334/- for the period 10.09.2004 to 15.06.2005 under Commercial Coaching or Training Service and ₹ 45,919/- in respect of tax liability on value of course materials have been set aside, the penalties under Section 78 ibid is also modified - The total penalty imposed under Section 78 ibid., is therefore required to be reduced/modified to ₹ 3,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability amounting to ₹ 1,57,598/- under Renting of Immovable Property Service. 3. Accordingly, a Show Cause Notice No. 156/2008 dated 02.06.2008 was issued to the appellants inter alia proposing demand of the above amounts with interest and also imposition of penalty under various provisions of law. The Original Authority, vide Order-in-Original dated 29.01.2009, confirmed these proposals for demand of tax with interest and also imposed penalty under Section 78 of the Finance Act, 1994. In appeal, vide the impugned Order No. 231/2010 dated 16.12. 2010, the Commissioner (Appeals) confirmed the above tax demands and upheld the Order of the Original Authority to that extent. Hence, this appeal. 4. Today when the matter came up for hearing, Ld. Advocate Shri. M. Kannan appearing for the appellant makes oral and written submissions which can be broadly summarized as under : (i) In respect of the demand of ₹ 8,15,534/- under Commercial Coaching or Training Service for the period from 01.07.2004 to 15.06.2005 : Ld. Advocate submits that the issue of taxability in respect of this activity had been in litigation. In fact, many of the decisions had ruled tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 2007 : Ld. Advocate submits that the said demand is also conceded by the appellant. 5.1 On the other hand, Ld. AR Ms. T. Usha Devi, appearing for the Revenue, supports the impugned Order. She submits that the issue of taxability on computer training activity relating to Commercial Coaching or Training Service has been conclusively held against the appellants by the Hon ble Supreme court in M/s. Sunwin Technologies (supra). Hence, the appellants cannot take shelter under the plea of limitation. 5.2 With regard to the demand on supply of course materials, Ld. AR contends that the Board had issued Circular No. 59/8/2003-ST dated 20.06.2003, wherein it has been clarified that in case of Commercial Coaching or Training Institutes exclusion will apply only to the sale value of standard textbooks, which are priced . Ld. AR points out that the course materials supplied by the appellant cannot come under the fold of standard textbooks and hence, there is no infirmity in the demand made in this regard. 6. Heard both sides and have gone through the facts. 7.1.1 With regard to the demand of service tax of ₹ 8,15,534/- under Commercial Coaching or T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against the appellant by invoking the longer period of limitation, we are of the view that the same is not justifiable. As such we set aside the impugned order and allow the appeal on the point of time-bar, with consequential relief to the appellant. 7.1.2 We find that the ratio laid down in M/s. Gargi (supra) will apply on all fours to the present appeal on hand. This being so, demand of ₹ 7,13,334/- with interest for the period from 10.09.2004 to 15.06.2005 is set aside on the ground of limitation. However, the demand for the previous period namely from 01.07.2004 to 09.09.2004 amounting to ₹ 1,02,200/- with interest thereon which has already been conceded by the Ld. Advocate, is upheld. The appellants will be required to pay up the said amount with interest, as applicable, till the date of payment. 7.2 With regard to the inclusion of value of course materials for the purpose of arriving at value of taxable service, we find that the Ld. Advocate is correct in his assertion that the matter has been settled in favour of the appellants in the decision of the Tribunal in M/s. Chate Coaching Classes Pvt. Ltd. (supra). We find that CESTAT, Chennai has al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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