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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 ..... eges, were exempted from GST vide Entry 66 of Notification No.12/2017-CT (Rate) dated 28.06.2017, or not - HELD THAT:- There is no ambiguity in the language in Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018. Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018 is applicable only for services relating to examination or conduct of examination by petitioner colleges in W.P.No.11038 of 2022 W.P.No.5967 of 2023 and not to work relating to affiliation. The Hon ble Supreme Court has repeatedly held that the operation of the 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. In UNION OF INDIA VERSUS WOOD PAPERS LTD. [ 1990 (4) TMI 55 - SUPREME COURT] , 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 liberall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar University under Section 97 of CGST Act, 2017 r/w analogues provisions of the TNGST Act, 2017, from the 1st respondent Authority for Clarification and Advance Ruling (ACAR). 5.By the impugned order dated 19.11.2020, the first respondent,Authority for Clarification and Advance Ruling Authority (ACAR), has concluded as follows:- In view of the foregoing discussions, we rule as under:- Ruling The composite supply of sale of application, registration of course, inspection, etc with the Principal Supply of affiliation provided by the Bharathiar University to its constituent colleges (viz) Self-financing and management colleges for which they collect 1. Application Form fees; 2. Application Fees (Application* registration fee ( each/course/section)); 3. Inspection fees(each course/Section); 4. Affiliation Fee for each course; 5. Affiliation Fee for each additional section; 6. Initial Affiliation fee to start an institution; 7. Permanent Affiliation fee to the College; 8. Continuation of affiliation for each course; 9. Increase in intake for each course for permanent basis processing fee 10. Penal fee for receipt of late application is not exempted vide Sl.No.66 of Notification No.12/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of alternate remedy. The petitioner can file a statutory appeal before the Appellate Authority under Section 107 of the GST Act, 2017, if the petitioner so wishes to challenge the same. 11.That apart, the decision relied upon by the petitioners in all these cases are on the strength of the orders passed by this Court earlier in Madurai Kamaraj University vs. Joint Commissioner, O/o, the Commissioner of GST Central Excise, Madurai , (2021) 94 GSTR 192 and Madurai Kamaraj University Vs. Joint Commissioner, Office of the Commissioner of GST and Central Excise, Madurai , 2021-VIL- 639-MAD-ST. The decision in W.P.(MD).No.20502 of 2019 has not been accepted by the Department and the Department is in appeal. 12.This Court in W.P.No.15333 of 2020 has also taken a view that Mega Exemption Notification No.25/2012-ST dated 20.06.2012 with effect from 01.07.2012 as amended by Notification No.6/2014-ST dated 11.07.2014 and Notification No.9/2016-ST dated 01.03.2016 and Section 66 D(l) of the Finance Act, 1994 was not applicable to the petitioner in W.P.No.15333 of 2020 for the service relating either renting of immovable property and for the amounts charged by the Pondicherry University ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple of the judgment would apply to the case before us. 12. Mr.Vellapally, learned counsel for the respondent- Union of India, very fairly and rightly, did not dispute that the burden of the increase in excise duty, by reason of the reclassification of the said ammonium nitrate, would fall upon the appellants, and that, therefore, the appellants were entitled to agitate the validity of such reclassification and this could not be done in the civil suit that was contemplated by the High Court. 13. There is, in our view, no doubt that the reclassification of ammonium nitrate by the order of the Central Board dated November 1980, casts upon the appellants the obligation to pay the excise duty that is leviable as a result. Such obligation does not arise merely by reason of an agreement between SAIL and the appellants but also by virtue of the provisions of Chapter X of the Central Excise Rules, 1944. The appellants suffer adverse civil consequences and have, therefore, the locus to challenge the reclassification. There is no forum other than the High Court under Article 226 where they can do so, and the High Court was in error in not entertaining the later writ petition (No. 183 of 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (i), (ii) and (iii). This did not affect the grant of exemption under sub clause (iv). (d) an additional disqualification was introduced in respect of services 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 a part of an approved vocational education course. There was no disqualification in respect of sub item (iv) in this paragraph. 21.It is submitted that the determination of applicability of exemption will depend on the language of exemption under Section 11, which is relevant and not the test conceived by Section 8 of the Central Goods and Services Act, 2017. 22.It is submitted that Notification No.12/2017-CT(Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT(Rate) dated 25.01.2018 exempts services relating to admission or to conduct of examination. This activity in relation to admission will include affiliation, because without affiliation there can be no admission or examination. 23.It is further submitted that power under Section 11 to exempt is not solely guided by the Fitment Committee. The two fold parameters are recommendation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and Hon'ble Supreme Court:- (i) Madurai Kamaraj University vs. Joint Commissioner, O/o, the Commissioner of GST Central Excise, Madurai , (2021) 94 GSTR 192; (ii) Manonmaniam Sundaranar University vs. The Joint Director (GST Intelligence), Coimbatore reported in 2021-VIL-635-MADST. (iii) M/s.Rajiv Gandhi University of Health Sciences vs. Principal Additional Director General Directorate General of GST Intelligence Bengaluru, 2022(8) TMI 707; (iv) Bangalore University Jnanabharathi Campus vs. Principal, Additional Director General Directorate of GST Intelligence Bengaluru, 2022 (8) TMI 167; (v) Doypack Systems Pvt.Ltd vs. Union of India and Others, 1988(2)SCC 299; (vi) T.K.Kalayana Mandapam Association vs. Union of India and Others , 2004(5)SCC 632; (vii) Hansraj Gordhands vs. H.H.Dave, AIR 1970 SC 755; (viii) Government of Kerala vs. Mother Superior Adoration Convent , 2021(5)SCC 632; (ix) Union of India vs. Mohit Minerals , 2022(10) SCC 700; (x) CIT vs. Sun Engineering Works , 1992(4) SCC 363; (xi) All India Federation of Tax Practitioner vs. Union of India, 2007(7) SCC 527; (xii) IDL Chemicals Ltd vs. Union of India , 1996(5) SCC 373; (xiii) Indian Explosive Ltd., vs. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Bharathiar University has approached the 1st respondent invoking Section 98 of the TNGST Act, 2017 and obtained an order from the 1st respondent. The petitioners being affiliated to the 4th respondent and running the Institution, have derived right only from the 4th respondent. The 4th respondent has not preferred any appeal against the order of the 1st respondent under Section 100 of the TNGST Act, 2017. 38.In other words, the activity of affiliation is to monitor whether the institution possesses the required infrastructures in terms of space, technical prowess, financial liquidity, faculty strength, well equipped laboratory etc., and thereby eligible for the privileges to conduct the course/programme of study for the degree/title extended by the University to the students enrolled in such institutions. 39.It is submitted that the composite supply of sale of application, registration, inspection etc. with affiliation of the said University/course as the principal supply are not exempted under Entry 66 of Notification No.12/2017-CT(Rate) dated 28.06.2017 as amended by 2/2018 of TNGST Act, 2017 in G.O.Ms.No.13 CT R (B) Department dated 25.01.2018. Therefore, this writ petition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the council and public interest. The public interest sought to be protected is on the basis of the language employed by the Government through an exercise of power under Section 11. 47.It is submitted that the any service in relation to admission which will encompass a connected activity of affiliation and prayed for allowing W.P.No.11038 of 2022 and W.P.No.5967 of 2023. 48.I have considered the arguments advanced by the learned counsel for the petitioners and the learned counsel for the respondents. I have also considered Notification No.11/2017-Central Tax (Rate) dated 28.06.2017 Notification No.12/2017-C.T.(Rate) dated 28th June 2017 as amended by 02/2018-C.T.(Rate) dated 25.01.2018 and the provisions of Central Goods Services Tax Act, 2017 and Tamil Nadu Goods and Services Tax Act, 2017. 49.Section 9 is the charging provision under the respective enactments for levy of Tax under the respective enactments. In the exercise of powers conferred under Section 9 of Central Goods and Services Tax Act, 2017, Notifications have been issued prescribing the rate of tax on supply of service intra state. Section 11 empowers the Government to exempt tax fully and partially. 50.Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Rate), dated 9-5-2023.] 51.Notification No.12/2017 CT (Rate) dated 28.12.2017 exempts supply of few services from payment of Goods and Service Tax under Central Goods and Services Tax Act, 2017. 52.Entry 66 to Notification No.12/2017-C.T.(Rate) dated 28th June 2017 as amended by 02/2018-C.T.(Rate) dated 25.01.2018 prescribes nil rate of tax on certain categories of supply of service to educational institution. 53.Entry 66 to Notification No.12/2017- Central Tax(Rate) dated 28.06.2017 exempts certain categories of services from tax. Entry 66 to Notification No.12/2017- Central Tax(Rate) dated 28.06.2017 applies to certain categories of services falling under chapter heading 9992 provided to and by an Educational Institutions . Relevant portion of Entry 66 to Notification No.12/2017- Central Tax(Rate) dated 28.06.2017 reads as under:- In exercise of the powers conferred by sub-section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby exempts the intra-State supply of services of description as specified in colum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017. Entry 66 is somewhat similar to Entry 9 to Mega Exemption Notification No.25/2012-ST dated 20.06.2012. Two categories of exemptions in Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 are namely:- (a)Service provided by an educational institution to its students, faculty and staff as in Entry 66(a); and (b)Specified service provided to an educational institutions as in Entry 66(b). 57.The expression Educational Institution defined in definition Clause 2(y) to Notification No.12/2017 CT (Rate) dated 28.06.2017 at the time of inception read as follows:- y) 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 as a part of a curriculum for obtaining a qualification recognised by any law for the time being in force; (iii)education as a part of an approved vocational education course ; 58.The above expression Educational Institution as defined in definition clause 2(y) to Notification No.12/2017 CT ( Rate) dated 28.06.2017 was pari materia with the definition of Educational Institution i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary school or equivalent; (ii) Education as a part of a curriculum for obtaining a qualification recognised by any law for the time being in force; (iii)Education as a part of an approved vocational education course. Same Same same * Deleted vide Notification No.2/2018. 60.Entry 66(a) to Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 is not relevant for the purpose of this enquiry. The exemption in Entry 66(b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 is confined to services relating to admission to, or conduct of examination by, such institution; up to higher secondary. 61.This proviso was not there in Mega Exemption Notification No.25/2012-ST dated 20.06.2012. Proviso to Entry No.66 (b) (iv) to Notification No.12/2017-CT (Rate) dated 28.02.2017 restricted the exemption to service relating to admission to or conduct of examination by such institution up to Higher Secondary . Thus, service provided by Bharathiar University to these petitioner colleges in W.P.No.11038 of 2022 W.P.No.5967 of 2023 were not in contemplation of the Central Government when Notification No.12/2017-CT (Rate) dated 28.02.2017 was issued. 62.Although the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner, Office of the Commissioner of GST and Central Excise, Madurai , 2021-VIL-639-MAD-ST, W.P.(MD).No.20502 of 2019 and The Tamil Nadu Dr.MGR Medical University, Chennai vs. The Principal Additional Director General Directorate General Directorate General of Goods and Services Tax, Intelligence, Chennai , 2022-VIL-418-MAD-ST have been differed in view of the reasons in W.P.No.15333 of 2020. 69.Further, the view taken in Madurai Kamaraj University vs. Joint Commissioner, Office of the Commissioner of GST and Central Excise, Madurai in W.P.(MD).No.20502 of 2019 reported in 2021-VIL- 639-MAD-ST requires a reconsideration as there is no scope for interpretation when the language in the Notification is clear. 70.Entry No.66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 was later amended by Notification No.2/2018-CT (Rate) dated 25.08.2018. Relevant portion of Notification No.2/2018-CT (Rate) dated 25.08.2018 which amended Entry No.66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 reads as under:- o) against serial number 66, in the entry in column (3), - (i)after item (a), the following item shall be inserted, namely :- ( aa)by an educational institution by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al institution; (iv) services relating to admission to, or conduct of examination by, such institution; [up to higher secondary*] ; services relating to admission to, or conduct of examination by, such institution; (v) -- supply of online educational journals or periodicals 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. Provided that nothing contained in sub-items (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. * deleted by Notification No.2/2018-CT (Rate) dated 25.01.2018 * Bold portion in the last column were inserted / amended vide Notification No.2/2018-CT (Rate) dated 25.01.2018 73.By deleting the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 75.Although, the expression up to Higher Secondary was deleted from Entry 66 (b) (iv) to Notification No.12/2017-CT (Rate) dated 28.02.2017 by the amendment vide Notification No.2/2018 CT (Rate) dated 25.01.2018, the proviso made it clear that the benefit in Entry 66 (b) (i) (ii) (iii) was confined only to services provided to institution providing services by way of pre-school education and education up to higher secondary school or equivalent. 76.Deletion of up to Higher Secondary to Entry 66 (b) (iv) to Notification No.12/2017-CT (Rate) dated 28.02.2017 by Notification No.2/2018-CT (Rate) dated 25.01.2018 however did not mean service provided to the constituent colleges such as petitioner in W.P.No.11038 of 2022 W.P.No.5967 of 2023 by the Bharathiar University were exempted after amendment to Entry (b) (iv) to Entry No.66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 vide Notification No.2/2018 CT (Rate) dated 25.01.2018. 77.There is no ambiguity in the language in Entry b (iv) to Entry 66 to N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al principle of interpretation of fiscal laws is that given provision should be construed strictly and so long as the provision is free from any ambiguity, the words used therein should be given their plain meaning without importing into it any foreign words and without subtracting any words therefrom. In Britannia Industries Ltd. Vs. Commissioner of Income Tax and another , 278 ITR 546 (SC) it was held by the Apex Court that when the language of a statute is clear and unambiguous, the Courts are to interpret the same in its literal sense and not to give a meaning which would cause violence to the provisions of the statute. 83.This view has been followed by the Hon ble Supreme Court in several cases. Some of the decisions rendered by the Hon ble Supreme Court in the context of taxing statute, wherein the above principle has been reiterated are enumerated as under:- i. Commissioner of Central Excise, Raipur vs. Sepco Electric Power Construction Corporation , 2022(062) GSTL 0385 SC; ii.U nion of India vs. Mrgadarshi Chit Funds(P) Ltd. , 2017(003)GSTL 0003 SC; iii. Commissioner of Cus.(Import), Mumbai vs. Dilip Kumar Company , 2018(361)ELT 0372 SC; iv. Shabina Abraham vs. Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities. 85.Although, with effect from 25.01.2018 although the expression upto higher secondary was deleted from Notification No.12/2017-CT (Rate) dated 28.06.2017, yet it has to be held that the services provided to the petitioner by Bharathiyar University services was not relating to admission to, or conduct of examination by the petitioner. Only such ancillary services provided in relation to admission or to conduct of examination by the petitioner alone would have been exempted from payment of tax under the respective GST enactment. 86.Therefore, even on a demur service relating to admission to, or conduct of examination by Educational Institution as defined in Clause 2 (y) to the Notification No.12/2017 CT ( Rate) dated 28.06.2017 cannot apply to service provided in relation to grant or renewal of affiliation of the petitioners in W.P.No.11038 of 2022 W.P.No.5967 of 2023 to the Bharathiar University. 87.The service of admission or conduct of examination cannot be equated on par with service provided to the petitioners in W.P.No.11038 of 2022 and W.P.No.5967 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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