9911796707
TMI Blog2023 (10) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... R [ 2019 (11) TMI 17 - CESTAT HYDERABAD (LB)] has held that the service tax is leviable in respect of coaching provided by the appellant through junior colleges under its management or under the management of others also. The majority view held that the extended period is not invokable and the demand is limited to the normal period of limitation. On merit the issue is against the appellant but in the present case, the entire demand is barred by limitation - Appeal disposed off. - HON BLE Mr. S. S. GARG , MEMBER ( JUDICIAL ) And HON BLE Mr. P. ANJANI KUMAR, MEMBER ( TECHNICAL ) Shri Aman Pratap Singh , Advocate , Shri Tushar Mittal , CA for the Appellant Shri Raman Mittal , DR for the Respondent ORDER Per : S. S. GARG The present appeal is directed against the impugned order dated 28.10.2011 passed by the Commissioner (Appeals) of Central Excise, Delhi-I whereby the Ld. Commissioner has confirmed the demand of Service Tax of Rs. 6,90,989/- along with interest and equal penalty under Section 76 of the Finance Act, 1994 and Rs. 5,000/- under Section 77 of the Finance Act, 1994. 2. Briefly the facts of the present case are that the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iating the facts and the law. He further submits that the appellant was imparting education and not coaching/ training services. Further, imparting knowledge and conducting courses at higher level such as post graduate level cannot be termed as commercial training or coaching centre irrespective of whether the degrees so offered were recognized by law or not. 3.1 He further submitted that since the Appellant is registered under Societies Registration Act for educational purposes and was a non-profit company; its activities could not be considered as commercial . He further submitted that the demand of Service tax confirmed in the impugned order by invoking the extended period of limitation, is not sustainable. 3.2 He further submitted that the appellant being non-profit organisation and also registered under Section 12A(a) of the Income Tax Act, 1961, are primarily engaged in charitable activities without any profit motive, and therefore, the question of evasion of tax does not arise. He also submitted that the phrase 'Commercial Training or Coaching' has been defined in Section 65(26) of Finance Act, 1994 to mean any training or coaching provided by a commercial tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax payable by the appellant could have escaped. The appellant himself has produced an affiliation with PTU which was effective w.e.f 2006-2007 but the period involved in the instant appeal is 2003 to 2006, which clearly shows that the appellant was not providing education during the relevant period but was proving taxable service on which service tax was payable. In support of his submission, he relied upon the decision of the Larger Bench of the Tribunal in the case of M/s Sri Chaitanya Educational Committee vs. Commissioner of Customs, Central Excise Service Tax, Guntur 2019 (29) GSTL 712 (Tri.-LB). He further submits that the appellant neither took registration of service tax nor informed the department, and therefore, the extended period was rightly invoked. For this submissions, he relied upon the decision in the case of Bharat Roll Industry Pvt. Ltd. vs. Commissioner of Central Excise, Haldia 2008 (229) ELT 107 (Tri.-Kolkata). 5. After considering the submissions of both the parties and perusal of material on record, we find from the documents produced by the appellant on record that the appellant is registered under Society Registration Act, 1860 w.e.f. 26.08.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de belief that their activity is not covered within the definition of Commercial Training and Coaching Service. 5.5 Further, we find that during the relevant time, there were decisions in favour of the appellant and an explanation was inserted under Section 65 (105) (zzc) of Finance Act, 1994 with retrospective amendment by Finance Act, 2010 vide which it was clarified that Commercial Training and Coaching Centre shall include a trust or a society with or without profit motive. In these circumstances, it cannot be said that there was a suppression of facts with intend to evade payment of tax. 5.6 Further, a difference of opinion on the leviability of the service tax in the case of Sri Chaitanya Educational Committee would also support the bonafide view of the appellant regarding the leviability of the tax. 5.7 Further, the decisions relied upon by the appellant cited (supra) clearly holds that the extended period of limitation cannot be invoked under these facts and circumstances. 5.8 The majority decision of the Tribunal in the case of Principal Commissioner of Service Tax vs. Shree Chanakya Education Society cited (supra) was appealed against by the Revenue in the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved is a complicated issue of legal interpretation and cannot be held to be a settled law. The fact that there is difference of opinion between the two Members of the original Bench, itself establishes the fact that the legal issue is complex issue requiring legal expertise to settle the same. In such a scenario, if an assessee entertained a bona fide belief that inasmuch as the service is not being received by him, and he is not required to pay any tax, he cannot be blamed for the same. Further the fact that the entire exercise was Revenue neutral is also one of the factors to be considered in support of the appellant s plea of bona fide belief. If the appellant would have paid the said tax, they would have been entitled to the credit of the same and would have been in a position to use the same in discharge of their admitted Service Tax liabilities. In such a scenario, there are plethora of judgments by various Courts that no mala fide can be attributed to an assessee so as to invoke the longer period of limitation. Accordingly, I agree with the ld. Member (Technical) that the demand is barred by limitation and is required to be set aside along with setting aside of penalty. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
