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TMI Blog2021 (11) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... /or chargeability to tax and have erred in coining his own definition of the term vocational training and coaching which is not provided in the statute. The refusal to grant exemption to the appellant, inspite of admission by the learned Commissioner - that appellants are providing education/ vocational training, but the conclusion that such courses shall not qualify as vocational course due to the quantum of fee charged (high). We further find that the learned Commissioner has rejected the benefit of exemption and/or exclusion provided in the statute from tax, by observing that courses provided by the appellants are professional and technical in nature as well as glamorous - such interpretation is wholly misconceived. The Adjudicating Authority has failed to appreciate that there is no such bar (with respect to the quantum of fee), in the statute for grant of exemption. Further, the list of services (enumerated in Circular No. 59/8/2003) being in the nature of vocational courses is by way of example only. Further, the list ends with the word etcetera/etc., the conscious use of the word etc. indicates the wide scope of the exemption notification. Such observation of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns etc. Admittedly, the whole demand is based on data and information supplied by the appellant as has been demanded by the Revenue. Accordingly, we hold that extended period of limitation is not attracted and the show cause notice(s) are bad for invocation of extended period of limitation. Appeal allowed - decided in favor of appellant. - S. T. Appeal Nos. 70076-70077 of 2019 - FINAL ORDER Nos. 70251-70252 / 2021 - Dated:- 11-11-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Abhinav Kalra, Chartered Accountant for the appellants Shri Gyanendra Kumar Tripathi, Authorised Representative for the respondent ORDER The issue involved in these appeals is whether the appellants herein are liable to pay service tax under the head Commercial Coaching or Training Services during the period of dispute April, 2009 to 2015-16 (upto March, 2016). The demands have been confirmed by a common adjudication order dated 30.11.2018 by the Commissioner, Central Goods Service Tax, Noida. The detail of the demand is as follows:- Sl No. Name of the Noticee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the Service Tax Department and was making compliances. 4. On summons, Shri Vinay Kumar, General Manager of Marwah Studio appeared on 18.04.2013 and his statement was recorded wherein he inter alia stated that in (i) Asian School of Media Studies they were providing three years graduation and two years of post graduation courses in various stream of cinema, mass media, electronic media, multi-media,etc.,through (ii) Asian School of Communication , they were providing courses related to mass media and cinema. He also filed copies of documents like balance sheet, affiliation letter of ABS from AICTE for the academic year 2011-12 to 2013-14, certificate of affiliation as authorised learning center of Punjab Technical University (PTU) dated 11.05.2009 for ASMS, ledger of course fees with respect to the period 2009-10 to 2011-12 for all the institutes. 5. Statement was also recorded of Shri Sudarsan Behera, Manager Accounts of ASMS under Section 14 of the Central Excise Act, wherein he inter alia stated that he looked after accounts, works of the Group Institutions. Shri Sandeep Marwah and members of his family were the Trustees or the interested persons in these instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from service tax to industrial training institute or industrial training centre affiliated to National Council of Vocational Training (NCVT), a query was made by Revenue whether the institute of the appellants were affiliated to NCVT. Shri Marwah stated that ABS was started in 2011 only and was recognised by AICTE. The other institutes were not affiliated by NCVT. Presently ASMS was affiliated with Mewar University and it was earlier affiliated to Punjab Technical University. That ASC had been created in 2011 and was affiliated to Mewar University. Further, AAFT was providing vocational courses and were affiliated to Mewar University since 2008. Thereafter, Shri Marwah, vide letter, received by Revenue on 17.09.2013, submitted copies of various documents as follows:- a) Affiliation certificate of Asian School of Media Studies (purported to be issued on 08.03.2013 by Mewar University) b) Affiliation certificate of Asian School of Communication (Purported to be issued on 01.04.2011 by Mewar University). c) Affiliation certificate of Asian Academy of Film TV (Purported to be issued on 01.11.2011 by Mewar University). d) Sample copy of Degree issued by Punjab Technical U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent courses on its own, and is giving them certificates and diploma. (emphasis supplied) 9. As per the allegation in the show cause notice, on perusal of the agreements entered into between Mewar University and appellant s Institute ASC, ASMS and AAFT separately,it appeared that these agreements were for opening of business and development and training centers of Mewar University respectively, and not for granting any affiliation by the said University, for conducting educational courses recognised by law. Moreover, UGC has not granted any approval to Mewar University to run courses in collaboration with the appellant s. 10. It is also alleged that the certificate of affiliation of AAFT with Mewar University bears the date as 01.11.2008, whereas Mewar University was established by the Rajasthan Government Act, 4 of 2009 enacted on 05.02.2009. Thus, the certificate of affiliation dated 01.11.2008is without authority of law. 10.1 Further, certificate dated 11.05.2009 is issued by PTU to ASMS, by which affiliation was claimed to PTU. On perusal, it appeared that PTU recognised ASMS as its Authorised Learning Centers under Distant Learning Programme . Thus, it appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as chargeability of service tax on the nature and types of training/ courses provided by vocational training institutes and it reads as:- The vocational training institutes are exempted from service tax vide Notification No. 24/2004-ST dated 10.09.2004, as amended. By definition, such institutes should provide training or coaching that imparts skill to enable the trainee to seek employment or undertake, self employment, directly after such training or coaching. However, a careful reading of the definition shows that the exemption is available only to such institutes that impart training to enable the trainees to seek employment or self employment. (E) that the student/ candidates are provided courses/ training in the programs from initial levels, wherein, these students do not possess any such skill before joining these courses/ training. They (students) are provided courses/ training which enable them to seek employment or self employment. (F) that further more vide Notification No. 12/2012-ST dated 17.03.2012 and thereafter vide Notification No. 25/2012-ST dated 20.06.2012, different types of training and courses provided by AAFT are not falling in the ambit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighly glamorous film/ TV courses being imparted by appellant. However, it appeared that services provided by vocational training institute were exempt by virtue of Notification No. 24/2004-ST, which provided definition of such institutes as under:- Vocational training institute means a Commercial Training and Coaching Centres which provide vocational training or training that impart skill to seek employment or undertake self employment, directly after such training or coaching . It further appeared to Revenue that the appellants were not affiliated to Mewar University, Chittorgarh for providing educational courses recognised by law. As per the University Grants Commission (Establishment and Maintenance of standard in Private University) Regulation, 2003 , a private University established under the State Act shall operate ordinarily within the boundaries of the State. However, after the development of the main campus, in exceptional circumstances, the University may be permitted to be open off campus centres or off - shore campus, after five years of its coming into existence. Further, from letter dated 26.12.2013 of UGC, it is evident that no approval was granted to MU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further penalties were imposed, alongwith demand for interest. Being aggrieved, the appellants are in appeal. 21. As the issue in both the appeals are common and both the appellants are under the same management, hence, the appeals have been heard together and are being disposed of by this common order. 22. Heard the parties and perused the record. 23. Shri Abhinav Kalra, ld. Chartered Accountant appearing for the appellants urges that, gazette notification for establishment of PTU and MU may be referred to, and attention was drawn to the copy of notification in the paper book; both the Universities are recognized under the relevant State laws and have been created by the State legislatures. Further, attention is drawn towards the Memorandum of Understanding between the appellants and PTU/MU. It is demonstrated that several courses were being offered by the appellant in collaboration /affiliation with PTU/MU. He further drew our attention to the admission / fee slips. The students have filled the admission form of MU, Chittorgarh and have paid admission fee by demand draft in favour of MU. For example, we are referring to the admission form etc., of Kumar Sunny (student ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional training, which is authorised by the respective University, and in collaboration with the Universities the courses have been conducted and vocational training given to the students. As such, the education and training granted by the appellant in collaboration with the University, has led to grant of Degree recognised by law. Further, there is no objection raised with respect to the courses conducted by the appellant in collaboration with the respective University by the UGC, which is the controlling or administrative authority under the Act of Parliament. 24. To appreciate the facts and circumstances, we take notice of the legal provisions during the period of dispute which are as follows:- (A) For the Period 01.04.2009 to 26.02.2010 Notification No. 24/2004-ST, dated 10.09.2004 under which the Noticees have claimed exemption from service tax during the relevant period reads as under: 'In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary the public interest so to do, hereby exempts the taxable services provided in relation to commercial training ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Further, w.e.f. 01.05.2011, Notification No. 33/2011-ST, dated 25.04.2011 has been issued to provide as under: In exercise of the power conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government on being satisfied that it is necessary in the public interest so to do, hereby exempt,- (i) any pre-school coaching and training; (ii) any coaching or training leading to grant of a certificate or diploma or degree or any educational qualification which is recognized by any law for the time being in force; when provided by any commercial coaching or training centre from the whole of the Service Tax leviable thereon under section 66 of the Finance Act, 1994. (A) W.e.f. 01.07.2012 - the negative list of services has been introduced and the provisions governing taxability of services have undergone a complete overhaul. Under the new regime, Section 66B provides for charge of Service Tax on all services, other than those services specified in the negative list of services. Section 65B(34) of the Act defines 'negative list' to mean the services which are listed in Section 66D. Section 66D(1) of the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or training leading to grant of a certificate or diploma or Degree or any educational qualification, which is recognised by any law for the time being in force, have been kept out of the scope of service tax, as defined under Section 65(105) (zzc), upto the period 30.06.2012 vide Notification No. 10/2003-ST dated 20.06.2003 read with Notification No. 33/2011-ST dated 25.04.2011. 24.3 Accordingly, we discuss tax liability periodwise as there have been several changes made in the notification and statute from time to time. 24.4. Period 01.04.2009 to 26.02.2010 The learned Commissioner have observed that the activities of the appellant till the period 26.04.2010 may be categorised as vocational training , as well as recreational training as defined vide Notification No. 24/2004-ST, as such, the courses offered by the appellants do not fall under the ambit of service tax. 24.5 We find that the Adjudicating Authority have confirmed the demand for this period, holding that the legislative intent is to exempt vocational courses like typing, TV repair, vehicle repairing, tailoring, etc., that impart skill to enable a training to seek employment or undertake self employme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... college of PTU and MU etc. and as such were exempted from service tax levy under Notification No. 33/2011-ST dated 25.04.2011. The said notification provides any coaching or training leading to grant of a certificate or diploma or degree or any educational qualification, which is recognised by any law for the time being in force are exempt from service tax. Admittedly, the appellants have imparted vocational /educational training to their students/ trainees, who have on successful completion been awarded degree/ diploma by the concerned University and as such they are entitled to exemption under this Notification. 25.1 We find that in the impugned order the demand have been confirmed on the observation that the appellant did not have the authority to issue such certificate /degree/ diploma, and further they did not have valid affiliation with the University PTU/MU. We find that this contention of Revenue is contrary to the facts, as the appellant have demonstrated that the degree/ diploma certificates were issued by the respective Universities. Thus, the appellants have imparted education/ vocational training in collaboration with the University and the students have been g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institutions are run by a Charitable Institute namely Asian School of Film and TV , which is recognised and registered under Section 12A/ 12AA of the Income Tax Act. 25.6 We further find that the MoU entered between the appellants and respective University, providing inter-alia for:- a) Marketing related activities such as preparation, printing and dissemination of brochures etc.; b) Admission related activities such as preparation, printing and distribution of admission forms, counselling, entrance-test and students registration admission processing; c) Administrative activities such as management of student affairs, record maintenance and student notifications; d) Academic activities such as design of course curriculum, creation of program content with due approval of MU/PTU; e) Student evaluation by designing test mechanism, conducting examinations, evaluating industrial projects; f) Database management and student s records. 25.7 Further, MoU provides that the appellants are entitled to use the logo and style of the University for the specified purposes. 26. Similarly, the appellant has also entered into an agreement with Shobhit University, U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruling of the Kerela high Court in the case of Malapuram Distt. Parallel College Assn.vs. UoI (supra) where similar demand have been set aside observing that the Training and Coaching provided by the appellant / assessee therein is asper the course or curriculum of the University. The Tribunal also took notice that the definition of Commercial Training or Coaching Centre under Section 65(27) of the finance Act contains exclusion clause excluding pre-school coaching and training centre or any institute or establishment which issues any certificate or Diploma/ Degree or any educational qualification recognised by law for the time being in force. This Tribunal recorded a finding that the appellant / applicant are authorised study centre under a MoU entered with the University, on the basis of Distance Education Centre (DEC) guidelines issued under the IGNOU Act, 1985. Accordingly, it was held that the appellant/ applicant are exempted from Service Tax, even without the benefit of Notification No. 10/2003-ST. 28. Similar view was taken by another Co-ordinate Bench of this Tribunal in Trichy Institute of Management Studies vs. CCE (Chennai Bench) Final Order No. 286-287/2011 da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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