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TMI Blog2023 (11) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... Government Advocate, Mrs.R.Hemalatha Senior Standing Counsel For the R2 : Mr.V.Sundareswaran Senior Panel Counsel, Mr.Sai Srujan Tayi Senior Panel Counsel For the R4 : Mr.K.Shakespeare For the R4 : Mr.K.Shakespeare COMMON ORDER By this common order, all these four Writ Petitions are being disposed of. 2. The petitioners in W.P.Nos.11038 of 2022 & 5967 of 2023 are two colleges affiliated to Bharathiyar University, Coimbatore. These petitioners have challenged the impugned order dated 19.11.2020 passed by the first respondent the Authority for Clarification and Advance Ruling(ACAR) under Section 97 of CGST Act, 2017 r/w analogues provisions of the TNGST Act, 2017. 3.The petitioners in W.P.Nos.27092 & 24261 of 2022 are two Universities who have challenged the Show Cause Notice No.04/2022- GST(JC) dated 28.06.2022 and Order in Original No.01/2022 (GST) dated 05.05.2022 respectively. 4.The impugned ruling dated 19.11.2020 of the 1st respondent Authority for Clarification and Advance Ruling (ACAR) is challenged in W.P.Nos.11038 of 2022 & 5967 of 2023. The impugned ruling was obtained by Bharathiyar University under Section 97 of CGST Act, 2017 r/w analogues provisions of the TNGS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2019 was on the same activity undertaken by the Pondicherry University in connection with affiliation of colleges to it. By a separate order, which has been passed today, W.P.No.15333 of 2020 was dismissed with liberty to file a statutory appeal before the Appellate Authority. 9.The challenge to the impugned Show Cause Notice No.04/2022- GST(JC) dated 28.06.2022 issued by the respondent in W.P.No.27092 of 2022 is pre-mature and is therefore liable to be dismissed. It is not open for the petitioner to argue that the respondent in W.P.No.27092 of 2022 has no jurisdiction to issue the above Show Cause Notice on the ground that the petitioner is entitled to exemption under Notification No.12/2017- CT (Rate) dated 28.06.2017. It has to be examined by the respondent therein assuming the petitioner is entitled to such exemption under Notification No.12/2017-CT (Rate) dated 28.06.2017. 10.On the same principle, the challenge to Order in Original No.01/2022 (GST) dated 05.05.2022 bearing reference C.No.ADJ/GST/14/2021-CGST-DIV-III-COMMRTE-PUDUCHERRY impugned in W.P.No.24261 of 2022 filed by the Pondicherry University is liable to be dismissed on account of alternate remedy. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Supreme Court followed its earlier views in G.M., Central Bank of India v. Commr., Municipal Corpn. for the City of Ahmedabad, [(1995) 4 SCC 696]. In G.M., Central Bank of India v. Commr., Municipal Corpn. for the City of Ahmedabad [(1995) 4 SCC 696], the Hon'ble Supreme Court had held that even a tenant, who has to bear incidence of tax can file a writ petition challenging the assessment against the Land Lord. In I.D.L. Chemicals Ltd., Vs. Union of India and Others, (1996) 5 SCC 373, the Hon'ble Supreme Court held as under:- "11. Our attention was drawn by Mr Salve to the judgment of this Court in Asstt. G.M., Central Bank of India v. Commr., Municipal Corpn. for the City of Ahmedabad [(1995) 4 SCC 696]. This Court held that a tenant is entitled to impugn in an appeal an increase in property tax because, under the relevant statute, the burden of such increase may be passed by the landlord to the tenant and also because there was, in the case with which it was concerned, an agreement between the landlord and the tenant whereunder the obligation to discharge and pay the property tax was cast upon the tenant.Mr Salve submitted that the principle of the judgment would app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of these petitioners and give the reasons as to why these Writ Petitions are liable to be dismissed. 18.The learned counsel for the petitioners in W.P.No.11038 of 2022 & W.P.No.5967 of 2023 would submit that the petitioners are entitled for exemption under Entry 66 of Notification No.12/2017- CT(Rate) dated 28.06.2017 as amended by Notification No.2/2018- CT(Rate) dated 25.01.2018. 19.He further submitted that the amendment to Notification No.12/2017-CT(Rate) dated 28.06.2017 by Notification No.2/2018- CT(Rate) dated 25.01.2018 did not affect the right of exemption. On the contrary it clarified that the existing exemption was continued and has not been disturbed. 20.It is submitted that by Notification No.2/2018-CT(Rate) dated 25.01.2018, Notification No.12/2017-CT(Rate) dated 28.06.2017 was amended and the following changes were brought:- (a) the applicability of the exemption available under sub item (iv) in item (b) was extended to colleges; (b) there was an additional grant of exemption by introduction of sub item (v) to item (b); (c) the disqualification from the exemption contemplated under sub clause (b) was confined to services contemplated by sub clause (i), (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion "in relation to" found under Entry 66(b)(iv) of Notification No.12/2017 dated 28.06.2017 was an expression of wide import and referred to a subject matter for a service rendered by the Educational Institution to its students for examination or admission. 29.It is submitted that the 1st respondent ought to have construed the language of Entry 66(b)(iv) of Notification No.12/2017 dated 28.06.2017 on the basis of the plain language of the entry which was unambiguous and clear. 30.It is submitted that the 1st respondent having held that the service provided to the petitioners was a composite supply, ought to have extended the benefit of Entry 66(b)(iv) of Notification No.12/2017 dated 28.06.2017 and corresponding Entry in G.O.Ms.No.73 dated 29.06.2017. 31.It is submitted that Entry 66(b)(iv) of Notification No.12/2017 dated 28.06.2017 and corresponding Entry in G.O.Ms.No.73 dated 29.06.2017 extended the exemption to an activity on which the specified activity depend and therefore, an activity in relation to admission and examination was exempted. 32.In support of the present writ petitions, the respective petitioners have also placed reliance on the following decisions of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffiliation" provided by Bharathiar University to its constituent colleges, viz., self financing and management colleges for which they collect application form fee, application fees, application registration fee for each course, inspection fee for each course, affiliation fee for each course, affiliation fee for each additional section, initial affiliation fee to start an Institution, continuation of affiliation for each course, etc., as well as increase in intake for each course, permanent affiliation fee to the colleges, penal fee for receipt of late applications, etc., are not exempted in terms of Entry No.66 of Notification No.12/2017 - CT (Rate) dated 28.06.2017, as amended by Notification No.02/2018 - CT (Rate) dated 25.01.2018. 36.It is submitted that sub-items (i), (ii) & (iii) of item (b) substituted by way of amendment by Notification No.02/2018 - CT (Rate) dated 25.01.2018 are applicable to an educational institution in exclusion of institutions providing services by way of pre-school education and education up to higher secondary school or equivalent. To that effect, corresponding G.O.Ms.No.13 CT & R (B) Department dated 25.01.2018 has been issued by the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falling under sub item (v) of item (b) to institutions providing services by way of pre-school education and education up to higher secondary school or equivalent or education as part of an approved vocational education course. There was no disqualification in respect of sub item (iv). 43.It is submitted that the petitioners bear the incidence of the tax levied on the 4th respondent. The 4th respondent insisted the petitioners reimburse the tax on the various fees and accordingly correspondence is marked before this Court. 44.It is submitted that the petitioners requesting the 4th respondent on 31.03.2022 to file a statutory appeal against the impugned order of the 1st respondent dated 19.11.2020 and the 4th respondent did not do so. The petitioners also do not have statutory remedy against the impugned order dated 19.11.2020 of the 1st respondent. 45.It is submitted that the determination of the applicability of the exemption will depend on the language of the exemption under Section 11, which is relevant and not the test conceived by Section 8 of the Central Goods and Services Act, 2017. 46.It is submitted that the power under Section 11 to exempt is not solely guided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be levied at the rate as specified in the corresponding entry in column (4), subject to the conditions as specified in the corresponding entry in column (5) of the said Table :- TABLE Sl. No. Chapter, Section or Heading Description of Service Rate (percent.) Condition (1) (2) (3) (4) (5) 1 Chapter 99 All Services 30 Heading 9992 Education Services 9 [Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 as amended by Notifications No. 20/2017-C.T. (Rate), dated 22-8-2017; No. 24/2017-C.T. (Rate), dated 21-9-2017; No. 31/2017-C.T. (Rate), dated 13-10-2017; No. 46/2017-C.T. (Rate), dated 14-11-2017; No. 1/2018-C.T. (Rate), dated 25-1-2018; No. 13/2018- C.T. (Rate), dated 26-7-2018; No. 17/2018-C.T. (Rate), dated 26-7-2018; No. 27/2018-C.T. (Rate), dated 31-12-2018; No. 30/2018-C.T. (Rate), dated 31-12-2018; No. 3/2019-C.T. (Rate), dated 29-3- 2019; No. 10/2019-C.T. (Rate), dated 10-5-2019; No. 20/2019-C.T. (Rate), dated 30-9-2019; No. 26/2019-C.T. (Rate), dated 22-11-2019; 2/2020- C.T. (Rate), dated 26-3-2020; 2/2021-C.T. (Rate), dated 2-6-2021; 4/2021-C.T. (Rate), dated 14-6- 2021; 6/2021-C.T. (Rate), dated 30-9-2021; No. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g contained in entry (b) shall apply to an "educational institution other than an institution providing services by way of pre-school education and education up to higher secondary school or equivalent. Nil Nil 54.Explanation 3 & 4 to Notification No.12/2017- Central Tax (Rate) dated 28.06.2017 reads as under:- "3.Explanation.- For the purposes of this notification,- (i) Reference to "Chapter", "Section" or "Heading", wherever they occur, unless the context otherwise requires, shall mean respectively as "Chapter, "Section" and "Heading" in the Scheme of Classification of Services. (ii) Chapter, Section, Heading, Group, or Service Code mentioned in Column (2) of the Table are only indicative." 4. This notification shall come into force on the 1st day of July, 2017." 55.Entry No.81 corresponds to Heading 9992. Heading 9992 deals with Education Services. Entry No.66 to Notification No.12/2017- Central Tax(Rate) dated 28.06.2017 is some what pari materia with Entry No.9 to Notification No.25/2012-ST dated 20.06.2012 as amended by Notification No.6/2014 and Notification No.9/2016-ST dated 01.03.2016 which fell for consideration in W.P.No.15333 of 2020. As mentioned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Services relating to admission to, or conduct of examination by, such institutions; b.to an educational institution, by way of - i. Transportation of students, faculty and staff; ii. Catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory; iii. Security or cleaning or housekeeping services performed in such educational institution; iv. Services relating to admission to, or conduct of examination by, such institution; up to higher secondary:* Provided that nothing contained in entry (b) shall apply to an educational institution other than an institution providing services by way of pre-school education and education up to higher secondary school or equivalent Same Minor changes (in Bold) Same substantial changes Definition Clause 2(oa):- Entry 9 to Notification No.25/2012 - ST dated 20.06.2012 Definition Clause 2(y) Entry 66 to Notification No.12/2017 -CT (Rate) dated 28.06.2017 Remarks Heading : 9992 2(oa)"educational institution" means an institution providing services by way of:- (i) Pre-school education and education up to higher secondary school or equivalent; (ii) Education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up to higher secondary school or equivalent]. Thus, exemption was applicable only for supply of the services to specified recipient of services alone. 64.Thus, Entry (b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 applied only to services to educational institution by way of pre-school education and education up to higher secondary school or its equivalent to an educational institution. 65.Entry (b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 do not apply to services provided to colleges, even if such affiliation services were to fall under the category of services relating to admission to, or conduct of examination by, such institution as it is restricted to up to higher secondary. 66.Thus, to begin with benefit of Entry No.66 (b) (iv) to Notification No.12/2017-Central Tax (Rate), dated 28.06.2017 was confined to services provided to an educational institution providing such educational services by way of pre-school education and education up to higher secondary school or equivalent. 67.Therefore, even on a demur, it can cannot be assumed that the benefit of the above Notification No.12/2017-Central Tax (Rate), dated 28.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71.By Notification No.2/2018-CT (Rate) dated 25.01.2018, expression "upto Higher Secondary" was deleted from Entry (b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017. 72.Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 as it stood at its inception prior to amendment and after amendment vide Notification No.2/2018-CT (Rate) dated 25.08.2018 is tabulated below in the following table for convenience and comparison:- Sl. No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Between 01.07.2017 and 25.01.2018 After 25.01.2018 till date after amendment vide Notification No.2/2018- CT (Rate) dated 25.08.2018 66 Heading 9992 Services provided- Services provided- (a) by an educational institution to its students, faculty and staff; by an educational institution to its students, faculty and staff; (aa) -- by an educational institution by way of conduct of entrance examination against consideration in the form of entrance fee;" (b) to an educational institution, by way of,- to an educational institution, by way of,- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) dated 28.02.2017 as it amended by Notification No.2/2018-CT (Rate) dated 25.01.2018 are reproduced below:- Entry 9(b)(iv) to Mega Exemption Notification No.25/2012-S.T dated 20.06.2012 as amended by Notification No.9/2016-ST dated 01.03.2016 Entry No.66 (b) (iv) to Notification No.12/2017-CT dated 28.02.2017. Services provided - (b) to an educational institution, by way of,- (iv) services relating to admission to, or conduct of examination by, such institution; Services provided - (b) to an educational institution, by way of,- (iv) services relating to admission to, or conduct of examination by, such institution; Provided that nothing contained in subitems (i), (ii) and (iii) of item (b) shall apply to an educational institution other than an institution providing services by way of pre-school education and education up to higher secondary school or equivalent. Provided further that nothing contained in sub-item (v) of item (b) shall apply to an institution providing services by way of: i. pre-school education upto school or equivalent; or ii. education as a part of an approved vocational education course. 2.Definitions - For the purpose of this notification, unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification has to be judged not by the object which the rule making authority had in mind but the express words it has employed effectuate the legislative intent. 79.In Union of India vs. Wood Papers Limited, 1990 (47) ELT 500, the Hon'ble Supreme Court held that at the stage of applicability, the Notification has to be construed strictly and the ambit should not be widened or extended. It further held that only once that stage is crossed, the notification should be construed liberally that is other technicalities and procedural compliances should not come in the way of extending the benefit. 80.In this connection, the decision of the Kings Bench Division in Cape Brandy Syndicate Vs. IRC (1921)1 KB 64, is invited, wherein it was held as follows:- "In taxing statute one has to look merely at what is clearly said. There is no room for intendment. There is no equity about tax. There is no presumption as to tax. Nothing is to read in, nothing is to be implied. One can only look fairly at the languages used. Statute has to be read plainly. 4.It is to be examined whether all the conditions laid down in Sec.44888 are cumulatively fulfilled or not. Even if one of the conditions is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pappu Sweets and Biscuits vs. Commissioner of Trade Tax, U.P.Lucknow, 2004(178)ELT 0048 S.C; xii.Commissioner of Central Excise, Pondicherry vs. Acer India Ltd., 2004(172) ELT 0289 S.C; xiii.Commissioner of Cental Excise, Meerut vs. Kisan Sahkari Chinni Mills Ltd., 2001(138)ELT 0946 G.O.I; xiv.BaidyanathAyurved Bhawan Pvt. Ltd., vs. Excise Commissioner U.P., 1999(110)ELT 0363 S.C; xv.Calcutta Jute Manufacturing Co. vs. Commercial Tax Officer, 1997(093) ELT 0657 S.C; xvi.Mafatlal Industries Ltd., vs. Union of India, 1997(089) ELT 0247 S.C; xvii.Aphali Pharmaceuticals Ltd. vs. State of Maharashtra, 1989(044) ELT 0613 S.C; xviii.Shabian Abrahamvs. Collector of Central Excise and Customs, 2017(050) STR 0241 S.C; xix.M.P.Steel Corporation vs. Commissioner of Central Excise, 2017(050) STR 0205 S.C and xx.Ranbaxy Laboratories Ltd vs. Union of India, 2012 (027) STR 0193 S.C 84.The Hon'ble Supreme Court in the case of A.V.Fernandez vs. State of Kerala, AIR 1957 SC 657, held as follows:- " It is no doubt, true that in construing fiscal statues and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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