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TMI Blog2020 (3) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Companies Act and engaged in the business of printing. The second petitioner is a Director of the petitioner - company. 2.1 Service tax was introduced in India for the first time in 1994 under Chapter V of the Finance Act, 1994 with effect from 1st July 1994, which came to be amended from time to time. Chapter V of the Finance Act, 1994 has been omitted by section 173 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'the CGST Act'), which came into force from 1st July 2017. 2.2 The petitioner - company is registered with the service tax department for payment of service tax on reverse charge mechanism since 15.07.2013. In the course of its business, the petitioner - company has provided services in relation to examinations conducted by the Maharashtra State Board of Secondary and Higher Secondary Education, Pune, Maharashtra State Council of Examination, Pune, Gujarat Secondary and Higher Secondary Education Board, Gandhinagar and Gujarat Technological University, Ahmedabad (hereinafter referred to as the 'Boards/University'). 2.3 It is the case of the petitioners that since the services relating to examinations provided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax during the period of 01.07.2013 to 30.09.2013. It is the case of the petitioners that since the services provided to/by an educational institution in respect of education by way of auxiliary education services, has been exempted from service tax vide Notification dated 25/2012-ST dated 28.06.2012 as amended, and since the petitioner firm had paid the service tax on its own, the petitioner firm filed a refund claim in relation to the same. The competent authority namely the Assistant Commissioner, Central Excise and Service Tax found that the tax in reference was borne by the assessee and not passed onto any one and further that the services in reference were exempt. Accordingly, by an order dated 01.10.2014, refund was allowed in favour of the petitioner firm. Against the said order, the Department preferred an appeal, wherein, the appellate authority held that the petitioner firm was eligible to refund; however, the same was not allowed in terms of section 12C of the Central Excise Act, 1944 as in the opinion of the authority, it would amount to unjust enrichment. It was, accordingly, directed that the refund be credited to the Consumer Welfare Fund in accordance with section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the omission of the Chapter V of the Finance Act, 1994 and prayed that the inquiry pursuant to the communication dated 30.11.2017 be dropped. It is the case of the petitioners that during the period when the provisions of Chapter V of the Finance Act, 1994 were in force, no show-cause notice was issued, nor was any inquiry pending concerning short/non-payment of service tax. It is the case of the petitioners that it was the understanding of all concerned, including the Department that the institutions referred to hereinabove were educational institutions and the persons providing services covered under the exemption notification to such institutions were exempt from payment of service tax. The petitioner firm had, accordingly, been assessed and found to be eligible for grant of refund. The assessment, taking into consideration the exemption, has been found to be in order in the two audits undertaken by the competent authority. According to the petitioners, therefore, the question of there being any short/non-payment of service tax would not arise. 3.9 By a communication dated 04.04.2019, the respondents have not acceded to the representation made by the petitioners and summoned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance upon the decision of the Supreme Court in Union of India v. Coastal Container Transporters' Association, rendered on 26th February 2019 in Civil Appeal No. 2276 of 2019, wherein, the court held thus: "7. In the writ petition filed before the High Court, a preliminary objection was raised on behalf of appellant nos.2 and 3 with regard to maintainability of the petition. Firstly, it was pleaded that as the writ petition itself was directed against the show cause notices, such petition was not maintainable. Secondly, on the ground that as the controversy relates to classification of services and even if the show cause notices were to culminate into final order, appeal would lie before the Supreme Court, as such, High Court, in exercise of writ jurisdiction, should refrain from entertaining the petition which involves a classification dispute. It was pleaded that it was not either a case of lack of jurisdiction or a case where the principles of natural justice are violated, so as to entertain the petition in which only show cause notices were challenged." "18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladi Drugs & Pharma Ltd. v. Union of India, 2004 (166) ELT 153 (SC), relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage." 4.2 It was submitted that the above decision would be squarely applicable to the facts of the present case and hence, this court may not entertain the writ petition and may relegate the petitioners to answer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icatory machinery provided under the Act, more so when the statutory appeals against the adjudication orders are also provided. However, we find that the High Court has simply gone by the contract in question, which was entered into between the respondent and M/s. BirIa Corpn. Ltd. and taking into consideration all the averments, which were made in the show-cause notice, on the basis of admitted facts, it has come to a conclusion that even when the allegations in the show-cause notice are accepted, the said contract does not amount to providing any "Cargo Handling Service" as defined under Entry 23 of Section 65 of the Act. Therefore, we are of the opinion that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts, as admitted by the parties, which were so specifically recorded by the High Court itself." 5.3 Reliance was also placed upon the decision of this court in Darshan Boardlam Ltd. v. Union of India, 2013 [287] ELT 401, wherein, on behalf of the revenue a contention had been raised that the petition may not be entertained as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a conclusion therein as regards the liability of the petitioners. Reliance was placed upon the decision of the Supreme Court in Siemens Ltd. v. State of Maharashtra, (2006) 12 SCC 33, wherein, it has been held thus: "9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma, (1987) 2 SCC 179, Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 and Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28, but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I. Shephard v. Union of India, (1987) 4 SCC 431.) It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conveyed to the person proceeded against. 29. In the instant case from the underlined* portion of the show-cause notice it is clear that the third respondent has demonstrated a totally closed mind at the stage of show-cause notice itself. Such a closed mind is inconsistent with the scheme of Rule 43 which is set out below. The aforesaid Rule has been framed in exercise of the power conferred under Section 33 of the Marine Products Export Development Authority Act, 1972 and as such that Rule is statutory in nature. 30. Rule 43 of the MPEDA Rules provides as follows: "43. Cancellation of registration.-Where the Secretary or other officer is satisfied that any person has obtained a certificate of registration by furnishing incorrect information or that he has contravened any of the provisions of this rule or of the conditions mentioned in the certificate of registration, or any person who has been registered as an exporter fails during the period of twelve consecutive months to export any of the marine products in respect of which he is registered, or if the Secretary or other officer is satisfied that such person has become disqualified to continue as an exporter, the Secretar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in different jurisdictions and ultimately held in para 35, the true test of bias is: "35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom-in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained:" (emphasis supplied) 35. Going by the aforesaid test any man of ordinary prudence would come to a conclusion that in the instant case the alleged guilt of the appellant has been prejudged at the stage of show-cause notice itself." 5.8 Reference was also made to the contents of the affidavit-in-reply filed on behalf of the respondents, wherein there are categorical averments to the effect that the GSEB, GTU, MSEB and MSCE do not qualify as educational institutions; that the services provided by the petitioners to the Boards/University are not services specified in section 66D(l) of the Finance Act, 1994; and that the services provided by the petitioners are not exempt under serial No. 9 of the Mega Exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Appellate Tribunal, appeal lies to the High Court; however, the order which is subject matter of challenge should not relate to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment. Since classification of goods or services has a direct relation with the rate of duty, an appeal against an order of the Appellate Tribunal relating to a classification dispute would also lie before the Supreme Court and not the High Court. 6.2 Since an appeal against a matter which relates to the determination of a question having a relation to the rate of duty or value of goods for the purposes of assessment lies to the Supreme Court and not to the High Court, this court ordinarily, would not entertain such a dispute in exercise of powers under article 226 of the Constitution of India. 6.3 The first question that therefore needs to be examined is whether the dispute involved in the present cases is a classification dispute. 6.4 A dispute can be said to be a classification dispute provided it involves a question regarding the entry under which particular goods or services fall. In the present cases, insofar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present cases, this court is required to examine a legal issue, viz. as to whether on the allegations made in the show-cause notices, the institutions to which services have been provided by the petitioners are educational institutions; and no disputed questions of fact are involved. In these circumstances, the contention that these petitions under article 226 of the Constitution of India are not maintainable before the High Court does not merit acceptance. 6.9 Reference may also be made at this stage to the contents of the show-cause notice dated 20.04.2018 issued to the petitioners in Special Civil Application No. 20748 of 2018, the relevant part whereof, are extracted hereunder: 6.9.1 In the last sub-paragraph of paragraph 7.5.2 of the show-cause notice, it has been stated thus: "Truly, it needs to be examined as to whether the Boards/University viz. to (i) Gujarat State Education Board, (ii) Gujarat Technological University, (iii) Maharashtra State Education Board and (iv) Maharashtra State Council fall under the definition of Educational Institution or not." 6.9.2 In the context of the above, in paragraph 7.5.3 of the show-cause notice, it has been stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received from these Boards/University for the services provided to them. 7.6.2 It also appears that even before insertion of definition of educational institution vide Notification No. 06/2014-ST dated 11.07.2014, the (i) GSEB (ii) GTU (iii) MSEB and (iv) MSCE were not educational institutions as per the definition of educational institutions under the Section 2(b) of the Gujarat Educational Institutions (Management) Act, 1976 as described in para 7.5.3.5 and 7.5.3.6 above." 6.9.5 In the last sub-paragraph of paragraph 7.7.2, it has been recorded thus: "It is relevant to note that not all Universities or such like institution have Departments, Faculties and Students on their roll for imparting education. The service receiving institutions in this present case are merely entrusted with the task of affiliation and preparation of guidelines for institutes registered/affiliated under them. These institutes are different from the "University" stated in the case law by the fact that these University/Boards are neither equipped with nor mandated to have on board faculty, Departments and Students under their roll for imparting education directly to their students. Hence, the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. 6.12 In Oryx Fisheries Private Limited v. Union of India, (supra), the Supreme Court has inter alia held that if on a reasonable reading of a show-cause notice, a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such show-cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. 6.13 In the present cases, a perusal of the impugned show-cause notices clearly shows that the authority concerned has given conclusive findings on all the issues on which the show-cause notices have been issued. The principles enunciated in the above decisions would, therefore, be squarely applicable to the facts of the present case. Therefore, on this ground al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was invited to the savings clause contained in section 174(2)(e). Reliance was placed upon the decision of the Gauhati High Court in writ petition (C) No. 2059 of 2018 in the case of Laxmi Narayan Sahu v. Union of India and others, wherein, the court has held thus: "28. In other words, the proposition laid, down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) is that the continuance of a further proceeding under an omitted Act depends upon as to whether a savings clause is provided in the enactment by which the earlier enactment was omitted. In the instant case, it is taken note of that the provisions of Chapter V of the Finance Act of 1994 were omitted" by Section 173 of the CGST Act of 2017, where Section 173 is under the heading of Amendment of Act 32 of 1994'. Section 174 of the said Act which is under the heading of 'Repeal and Saving, in Sub-Section 1 provides that save and otherwise provided in the Act, on and from the date of commencement, the portion of the Central Act of 1994, the Medicinal and, Toilet Preparation (Excise Duties) Act 1955, the Additional Duties of Excuse (Goods of Special Importance) Act 1957, the Additional Duties of Excise (Textile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiated was also duly provided. Existence of the savings clause in respect of omission of Chapter V of the Finance Act of 1994 clearly brings it within the purview of the provisions laid down by the Constitution Bench of the Supreme Court in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra). 32. As already elucidated hereinabove, paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) provides that if a statute stood omitted with a savings clause, the savings clause would not render it impermissible for the proceedings initiated/ to be initiated under Chapter V of the Finance Act of 1994, which stood omitted by Section 173 of the CGST Act of 2017 to be continued. 33. A conjoint reading of the provisions laid down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) and Section 173 and 174(2)(e) would lead to a conclusion that although Chapter V of the Finance Act of 1994 stood omitted under Section 173, but the savings clause provided under Section 174(2)(e) will enable the continuation of the investigation, enquiry, verification etc., that were made/ to be made under Chapter V of the Finance Act of 1994. 34. In view of such conclusion, we find the writ petition to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts: Provided that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded on or after the appointed day; or (d) affect any duty, tax, surcharge, fine, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed against the provisions of the amended Act or repealed Acts; or (e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in Special Civil Application No. 20748 of 2018 raised two fold contentions. The first contention was that the services provided by the petitioners to the Maharashtra State Council of Examination, Pune, Maharashtra State Board of Secondary and Higher Secondary Education, Gujarat Secondary and Higher Secondary Education Board, Gandhinagar and the Gujarat Technological University, Ahmedabad are exempted from service tax; and the second contention was that the respondent - authorities are not justified in invoking the extended period of limitation. 8.1 Elaborating on first ground, the learned counsel submitted that the petitioners have provided services in the nature of examination related activities like bar code scanning, printing, OMR scanning, data entry etc. to the aforesaid organisations. Serial No. 9 of the Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 exempted from service tax services by way of "(a) auxiliary education services to an educational institution". Notification No. 3 of 2013 dated 01.03.2013 substituted for the words, "provided to or by an educational institution" with the words "provided to an educational institution. Reference was made to Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; the process of developing and training the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the instruction received at school, or college but the whole course of training moral, intellectual and physical; is not limited to the ordinary instruction of the child in the pursuits of literature. It also comprehends a proper attention to the moral and religious sentiments of the child. And it is sometimes used as synonymous with 'learning'." 83. In Sole Trustee, Lok Shikshana Trust v. CIT, (1976) 1 SCC 254, the term "education" was held to mean: "the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. What education connotes is the process of training and developing the knowledge, skill, mind and character of students by formal schooling." 84. In "India Vision - 2020" published by the Planning Commission of India, it is stated (at p. 250): "Education is an important input both for the growth of the society as well as for the individual. Properly planned educational input can contribute to increas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided to such institutions should, therefore, be followed in the case of the petitioners also. 8.10 As regards the second contention with regard to the invocation of the extended period of limitation, the learned counsel for the petitioners submitted that the respondents themselves believed that the services provided by the petitioners are services provided to educational institutions and therefore, exempt. The respondents had issued a circular dated 19.09.2013 expressly declaring that such services provided to educational institutions are exempt. Such understanding of the respondents is also reflected in the notification dated 26.07.2018. It was submitted that when the respondents had themselves conveyed that the service in question was not taxable service, they are not justified in invoking the extended period of limitation. It was urged that there is no suppression on the part of the petitioners and that insofar as fraud and suppression are concerned, the particulars of such fraud or suppression have to be set out in the show cause notice inasmuch as invocation of the larger period of limitation is a jurisdictional issue, in absence of which it is not permissible for the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate under section 3 of the Gujarat Secondary and Higher Secondary Act, 1972 and has a perpetual succession and common seal. Similarly, the Gujarat Council of Educational Research and Training (GCERT) and Gujarat State Examination Board (GSEB) are both, body corporates, each of them being a society registered under the Societies Registration Act, 1860. It was submitted that, having held that the petitioner is not liable in relation to the service tax for the services provided to service recipients who are body corporate, the respondent could not have held the petitioner liable to pay service tax in relation to the other service recipients who were also body corporates. 9.2 It was pointed out that the authority itself has held that the services provided by the petitioner to the service recipients is an exempted service under the Notification No.25/2012 dated 20.06.2012 and has, accordingly, held that the petitioners are not liable to pay service tax on rent-a-cab services with effect from 01.07.2012. The authority has further directed the refund of the tax paid subject to the fulfillment of requirements under section 11B of the Central Excise Act as made applicable to the service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners would be entitled to exemption in respect of auxiliary educational services provided such services are provided to educational institutions, whereas, the Boards/University to whom services have been provided by the petitioners do not fall within the ambit and scope of "educational institution". It was submitted that only those entities would be qualified under the term "educational institution" which provide services which have been referred to hereinabove. 10.2 Reference was made to the averments made in the affidavit-in-reply filed on behalf of the respondents, wherein it is stated that as per the functions and duties of the Boards/University referred to therein, it is observed that they are functioning as organisations which are entrusted with the work of creating more schools/colleges/institutes under their affiliation, to prepare the syllabus of education for such institute, to conduct the academic tests and exams, to appoint examiners/ supervisors for smooth conduct of examinations, to declare the results of such examinations etc. It was contended that the Boards/ University work more like a managerial organisation to plan the syllabus of education and conduct of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable to the services provided to educational institutions. The case of the respondents is that the institutions to which the services by way of result processing and conducting of examination related work have been provided by the petitioners, do not provide the services specified in clause (l) of section 66D of the Finance Act, 1994 and are, therefore, not "educational institutions". 13. The moot question that, therefore, arises for consideration is whether the Boards and University to whom services are provided by the petitioners are "educational institutions". 13.1 It is the case of the petitioners that in view of the functions and duties of the Boards/University under the relevant statutes, the services provided to them fell under the negative list till 13.05.2016. Furthermore, it is the case of the petitioners that the services provided by them are covered under Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 as amended from time to time. 13.2 Vide section 143(F) of the Finance Act, 2012, with effect from 01.07.2012, the Finance Act, 1994 came to be amended whereby section 66D, which provides for negative list of services came to be inserted. Services which fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alent; (ii) Education as a part of a curriculum for obtaining a qualification recognized by any law for the time being in force; (iii) Education as a part of an approved vocational education course." 13.7 Thus, with effect from 14.05.2016, the definition of "educational institution" is brought in line with clause (l) of section 66D of the Finance Act, 1994 and is identically worded. 13.8 At this juncture, reference may be made to CBEC Circular No.172/7/2013-ST dated 19.09.2013, which has been issued for clarification regarding levy of service tax on certain services relating to the education sector. The said circular refers to clause (l) of section 66D of the Finance Act, 1994 as well as Serial No. 9 of Notification No.25/2012-ST dated 20.06.2012. In paragraph 3 of the said circular, it is provided thus: "3. By virtue of the entry in the negative list and by virtue of the portion of the exemption notification, it will be clear that all services relating to education are exempt from service tax." 13.9 While "educational institution" came to be defined for the first time with effect from 11.07.2014, the services mentioned in section 66D (l) of the Finance Act, 1994 continued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such examination related and result processing services. According to the respondents, therefore, on reading the definition of 'educational institution' as given under the Finance Act, 1994 and comparing it with the functions and duties of the (i) GSEB, (ii) GTU, (iii) MSEB and (iv) MSCE, these institutions do not qualify as "educational institutions". 13.14 The scope and ambit of the expression "educational institution" as defined under clause (oa) of the Mega Exemption Notification requires to be examined. Furthermore, it is required to be ascertained as to whether the services provided by the petitioners to the Boards/University fall within the ambit of clause (l) of section 66D of the Finance Act. Under clause (oa) of the Mega Exemption Notification, "educational institution" is defined to mean an institution providing services by way of: (i) Pre-school education and education up to higher secondary school or equivalent; (ii) Education as a part of a curriculum for obtaining a qualification recognized by any law for the time being in force; (iii) Education as a part of an approved vocational education course. Clause (l) of section 66D of the Finance Act, 1994 reads thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the knowledge, skill, mind and character of students by formal schooling." 84. In "India Vision - 2020" published by the Planning Commission of India, it is stated (at p. 250): "Education is an important input both for the growth of the society as well as for the individual. Properly planned educational input can contribute to increase in the gross national products, cultural richness, build positive attitude towards technology and increase efficiency and effectiveness of the governance. Education opens new horizons for an individual, provides new aspirations and develops new values. It strengthens competencies and develops commitment. Education generates in an individual a critical outlook on social and political realities and sharpens the ability to self-examination, self-monitoring and self-criticism." 13.17.3 ln Nidhi Kaim v. State of M.P., (supra) the Supreme Court held that the examination is always considered as one of the major means to assess and evaluate candidate's skills and knowledge be it a school test, university examination, professional entrance examination or any other examination. Candidate's fitness for his further assignment, whether in studies or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income and expenditure, the Board of Secondary Education cannot be said to be existing for purposes of profits. It exists solely for purposes of education." 13.20 This court respectfully concurs with the above view of the Orissa High Court, namely that the Board of Secondary Education exists solely for the purposes of education. 13.21 In the light of the above principles enunciated in the decisions referred to hereinabove, this court is of the opinion that the word "education" cannot be given a narrow meaning by restricting it to the actual imparting of education to the students but has to be given a wider meaning which would take within its sweep, all matters relating to imparting and controlling education. Examination is an essential component of education as it is one of the major means to assess and evaluate the candidate's skills and knowledge, be it a school test, university examination, professional entrance examination or any other examination. As held by the Supreme Court, the examination is considered as a common tool around which the entire education system revolves. 13.22 Thus, education would mean the entire process of learning, including examination and grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ambit of the expression "educational institution" as contemplated under clause (oa) of entry No.2 of Notification No. 25/2012-ST and services provided by such Boards/University would also fall within the ambit of the services as postulated under clause (l) of section 66D of the Finance Act. 13.24 The Government of India has also adopted a similar approach in its Notification No.14/2018 - Central Tax (Rate) dated 26th July, 2018 issued in exercise of powers conferred by sub-section (1) of section 11 of the Central Goods and Services Tax Act, 2017, wherein it has been clarified that the Central and State Educational Boards shall be treated as educational institutions for the limited purpose of providing services by way of conduct of examination to the students. 14. Once the Boards/University to whom services have been provided by the petitioners, are held to be educational institutions, the very substratum of the impugned show-cause notices is lost inasmuch as the show-cause notices are premised on the allegation that the service recipients namely the Boards/University referred to hereinabove are not educational institutions and, therefore, the services rendered by them do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service provider, however, since the service tax portion was already recovered by the party from their service receivers, the refund ought to be credited to the Consumer Welfare Fund in view of the doctrine of unjust enrichment." Thus, according to the respondents the service provider, namely the petitioner, was not liable to pay service tax and the appeal against the order of refund was limited to the extent that the refund of the service tax to the petitioner would amount to unjust enrichment. The Commissioner (Appeals), by an order dated 29.09.2015, held that though the service tax paid is eligible for refund, the same cannot be allowed to be kept with the petitioner in terms of the provisions contained in section 12C of the Central Excise Act, 1944 as it would amount to unjust enrichment to the petitioner and accordingly, directed the amount to be credited to the Consumer Welfare Fund. Thus, even in appeal, the respondents admitted the fact that the services provided by the petitioner were exempted from payment of service tax. The order passed by the Commissioner (Appeals) has been challenged by the said petitioner before the Customs, Excise and Service Tax Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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