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TMI Blog2024 (6) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... m is recognized by law - if a Commercial Coaching or Training Institute provides both recognized and non-recognized courses, then non-recognized courses be leviable to tax. Analysing the facts and principles laid down in the case of M/S INDIAN INSTITUTE OF AIRCRAFT ENGINEERING VERSUS UNION OF INDIA ORS [ 2013 (5) TMI 592 - DELHI HIGH COURT] , it can easily be inferred that in the said case their Lordships have confronted with the issue as narrated in the facts are that the course issued by the Aircraft Maintenance Engineering Training School which has been approved by DGCA for providing Aircrafts Maintenance Engineering course whether could be considered to be covered under exclusion clause of definition of Section 65(27) before 1.5.2011 and after the date under Notification No.33/2011-ST dated 25.04.2011. Analysing the approvals given by the DGCA and the courses provided by the appellant a recognised institute, it has been held that the qualification acquired by the candidates even without a license to practice, definitely be considered as a qualification recognised by law. In IILM UNDERGRADUATE BUSINESS SCHOOL VERSUS CCE DELHI AND (VICE-VERSA) [ 2017 (11) TMI 1271 - CESTAT NEW DE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, imposition of penalty is unwarranted and accordingly, set aside in both the appeals. The impugned orders are modified by setting aside penalty in both the appeals and upholding the confirmation of demands with interest for the normal period of limitation. The appeals are remanded only for the limited purpose of determination of tax for the normal period of limitation with interest. Appeal disposed off by way of remand. - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MRS. R. BHAGYA DEVI, MEMBER (TECHNICAL) Shri N. Anand, Advocate for the Appellant Shri Dyamappa Airani, Authorised Representative for the Respondent ORDER These two appeals are filed against respective Orders-in-Original passed by the Principal Commissioner of Service Tax, Bangalore, since involve common issues are taken up together for hearing and disposal. 2. Briefly stated the facts of the case are that the appellants are providing taxable services viz., Management or Business Consultancy Service, Manpower Recruitment or Supply Agency Services, Event Management Service, Commercial Training or Coaching Service and Renting of Immovable Property Service and registered with the department. During the course of audit of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has submitted that all these three long duration Post Graduate Programmes are indeed Post Graduate Diploma in Management which have been duly recognized by the Government of India, Ministry of Education and Social Welfare (Department of Education) vide Office Memorandum dated 25.07.1977 as also by Association of Indian Universities (AIU), New Delhi vide communication dated 17.05.1978. Further, he has submitted that all these three diploma Education Programmes in dispute are duly recognized and approved by the Government and the Governing Body of the appellant which is controlled and supervised by Ministry of Human Resource Development (MHRD). In support, they have referred to the letter dated 08.07.2014 of the Secretary, MHRD which is self-explanatory. It is his contention that in response to the said letters by the Secretary, MHRD by Circular dated 29.02.2016, it has been clarified that Post Graduate Programs in Management are exempted in line with Sl. No.9B of the Notification No.25/2012-ST and the said exemption being clarificatory in nature, the liability to pay service tax in respect of said programs for the past period will also become infructuous. He has submitted that in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 (30) STR 689 (Del.) CCE vs. Garg Aviation Ltd.: 2014 (35) STR 441 (All.) ITM International Pvt. Ltd. vs. CST: 2017 (7) GSTL 448 (Tri.-Del.) IILM Undergraduate Business School vs. CCE: 2018 (10) GSTL 345 (Tri.-Del.) 3.3 Further, he has submitted that the learned Commissioner has erred in confirming demand for the extended period of limitation since there has been no suppression whatsoever on the part of the appellant and the entire issue relates to bona fide interpretation of statutory provisions and there has been clarification issued by the Board from time to time including letters written by MHRD. In support, he has referred to the following decisions of the Hon ble Supreme Court: Cosmic Dye Chemical vs. CCE: 1995 (75) ELT 721 (SC) Jaiprakash Industries Ltd. vs. CCE: 2002 (146) ELT 481 (SC) Continental Foundation Joint Venture vs. CCE: 2007 (216) ELT 177 (SC). 4. The learned Authorized Representative for the Revenue has submitted that show-cause notices were initially issued demanding service tax on 4 programmes viz., Post Graduate Programme in Management (PGP), Post Graduate Programme in Public Policy and Management (PGPPM), Post Graduate Programme in Enterprise Management ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the learned Commissioner and the arguments advanced by the learned advocate for the appellant, the relevant applicable provisions as has been force and changed from time to time during the period in question, is reproduced as below: Section 65(27) of the Finance Act, 1994 Commercial training or coaching (before 01.5.2005) Commercial Training or Coaching Centre means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes but does not include preschool coaching and training centre or any institute or establishment which issues any certificate or diploma or degree or any educational qualification recognised by law for the time being in force; Commercial training or coaching (After 01.5.2005) Commercial Training or Coaching Centre means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 25/2012-Service Tax, dated the 20th June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 467(E), dated the 20th June, 2012, namely :- 1. In the said notification, - (a) in the first paragraph, - (i) (ii) after entry 9A, the following entry shall be inserted with effect from 1st March, 2016, namely, - 9B. Services provided by the Indian Institutes of Management, as per the guidelines of the Central Government, to their students, by way of the following educational programmes, except Executive Development Programme, - (a) two-year full time residential Post Graduate Programmes in Management for the Post Graduate Diploma in Management, to which admissions are made on the basis of Common Admission Test (CAT), conducted by Indian Institute of Management; (b) fellow programme in Management; (c) five-year integrated programme in Management. ; (iii) after entry 9B as so inserted, the following entries shall be inserted, namely :- 9C. services of assessing bodies empanelled centrally by Directorate Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retary, Ministry of Human Resource Development (MHRD) vide letter D. O. No. 2-14/2009-TS.V, dated 8th July, 2014 and 5th February, 2014 that MHRD is vested with the power to recognise educational courses [DoPT O.M. dated 8-1-1975], for the purpose of recruitment to posts under Government of India. It has been further stated by MHRD in their above-mentioned letters that IIMs have been conducting Post Graduate Programmes in Management and Fellowship Programmes which are equivalent to MBA and Ph.D degrees. It has been reiterated by Secretary, MHRD vide letter D.O. 3/5/2013-TS.V, dated 15-1-2016 that the IIMs have been conducting Post Graduate Programmes in Management and Fellowship Programmes which are equivalent to MBA and Ph. D degrees, respectively, (as also clarified by associations like Association of Indian Universities, Inter-University Board of India etc.). In view of this, the exemption being given to the above programmes of IIMs is clarificatory in nature and in view of the same, liability to pay service tax in respect of the said programmes for the past period will also become infructuous. (New entry at S. No. 9B of notification No. 25/2012-S.T. refers) 10. A simple analysi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w for time being in force. It is submitted that these are recognized courses by the DoPT and similar programmes have been approved by AICTE and Association of Indian Universities being equivalent to MBA degree, hence covered under the aforesaid expression. 14. The Commissioner on the other hand analyzing the communications/recognition of the association of Indian Universities, Ministry of Education, AICTE and analyzing the course contents of the three programmes referring to the website of the Appellant held that acceptance/approvals of the courses offered by the Appellant are limited to Post Graduate Programmes in Management (two years) being equivalent to MBA degree offered by universities and 5-year fellow programmes equivalent to Ph.D, but not to the said three courses/programmes. He has concluded that these three courses/programmes being not covered under the aforesaid approvals/communications, nor find a place in the amending Notification No.09/2016 ST 01.3.2016, and also in the clarification issued by the Board dated 29.02.2016, therefore, neither exempted under Notification No.33/2011-ST dated 25.4.2011 for the period 01.5.2011 to 30.6.2012 nor under clause (l) of Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the Association of Indian Universities(AIU); also the letters dated 08.7.2004 15.01.2016 of the Secretary, Ministry of Human Resources Development (MHRD) and Board s Circular dated 29.2.2016 are cited in support of their argument that these three programmes/courses are recognized by law. It is further evident from their argument that since the Ld. Commissioner has dropped the demand against two years Post Graduate diploma in Management programme(PGP) following the circular dated 29.2.2016, he ought to have also dropped the demand for all the three other courses/programmes. 17. The expression recognized by any law in the context of Section 66D of the Finance Act, 1994 has been clarified by the Board in its Circular dated 28.08.2012 as follows: Vocational Education/Training/Skill development Course (VEC) offered by Govt. Institutions or local authorities excluded from Service tax Clarification Circular No. 164/15/2012-S.T, dated 28-8-2012 F.No. 356/17/2012-TRU Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Service tax - Vocational education/training course - Regarding. Clarification has been sought in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner are deemed to be recognized by law being diploma or education qualification covered by the Notification No.33/2011 as well as the exception contained in the Negative List under Section 66D(l) read with Sl. No.9 and Sl. No.9B of Notification No.25/2012-ST dated 1.7.2012 as amended. 20. Before applying the said precedent to the facts of the present case in arriving at a finding whether the three courses offered are to be considered as recognized by law, it is necessary to read the principles of applicability of precedent laid down by the Hon ble Supreme Court in the case of Collector of Central Excise, Calcutta vs. Alnoori Tobacco Products: 2004 (170) ELT 135 (SC), wherein it is held that: 11 . Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) that the DGCA fully controls such training institutes by prescribing syllabus, number of seats per session, manner in which the exam is to be conducted as well as the manner in which the certificate is to be issued, though the candidates get the Final Licence i.e. BAMEL from the DGCA after qualifying further examination conducted by the DGCA; (iv) that though Service Tax in India was introduced in the year 1994 but commercial training or coaching services were brought under the Service Tax net only with effect from 1-7-2003 by insertion of Clause 65(105)(zzc) in the Finance Act by making services provided by a commercial training or coaching centre in relation to commercial training or coaching as a taxable service; (v) however vide Section 65(27), pre-school coaching and training centre or any institute or establishment which issues any certificate or diploma or degree or any educational qualification recognized by law for the time being in force, was excluded from the meaning of commercial training or coaching centre; (vi) that though Section 65(27) was amended with effect from 1-5-2011 to remove the exclusion earlier provided to pre-school coaching and training centre or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, Rules and CAR, to one year relaxation against the DGCA in a Court of law. The inference can only be one, that the Course Completion Certificate/training offered by such Institutes is recognized by law. 26 . There can be no doubt that such recognition through the Rules framed as aforesaid and through issuance of CAR, is a recognition by law, which is defined in Black s Law Dictionary, 8th Edition as the aggregate of legislation, judicial precedents and accepted legal principles and the set of rules or principles dealing with a specific area of legal systems. The Rules and the CAR aforesaid dealing with aircrafts, there can be no doubt, are law. The Supreme Court in Narsingh Pratap Singh Deo v. State of Orissa - AIR 1964 SC 1793 held that a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognized by Courts. Similarly, in R.S. Nayak v. A.R. Antulay - (1984) 2 SCC 183 it was held that law includes any Ordinance, By-law, Rule, Regulation, Notification, Custom or Usage having force of law. The Rules and CAR aforesaid have been enacted in exercise of legislative power as aforesaid. 27 . The reasoning in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not meant for successful candidates to be eligible to apply for job after completion of the said Programmes. On the other hand, all these courses are designed to enhance the skill in the field of Management of particular field and meant for persons having work experience, not specifically recognised by an authority like DGCA, who designs the course and exercise supervision over the conduct of the course. 23. In ITM International Pvt. Ltd. vs. CST: 2017 (GSTL 448 (Tri.-Del.), the issue for consideration by the Tribunal was that various courses which are provided by the appellant therein lead to award of degrees by universities equivalent and at par with the undergraduate and Honours degrees of various universities. The degrees for the appellant s courses are awarded by University of London , Allahabad Agricultural Instituted(Deemed University) have been mentioned as equivalent to the corresponding degrees like B. Sc. And B.A. (Hons.) of University of Delhi and other universities in the title Equivalence of Foreign Degree . The department alleging that the degrees and diplomas are not awarded by the Appellant hence service tax is applicable on providing such courses. By Majority Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e viz., PGP which is specifically approved, the same is automatically be applicable to other three courses and to be considered at par with the said PGP course. 28. The appellants have specifically referred to the letters addressed by the Secretary, MHRD on 08.07.2014 and 15.01.2016 to buttress their claim that theses courses also be covered, like PGP, since consequent to the said letters, the Notification No.25/2012-ST dated 01.07.2012 was amended by inserting Sl. No.9B to the said Notification with effect from 01.03.2016. The aforesaid contention deserves to be outrightly rejected in as much as reading para 7.14 and 7.15 of the said Circular, it is clear that while giving retrospective effect to the said Notification the exemption has been limited to the courses as are equivalent to MBA and Ph.D Degrees and not all graduate programmes. Thus, the three courses conducted by the appellant would not fall under the scope of the said exemption Notification No.33/2011-ST dated 25.04.2011 or the Negative List under clause (l) of Section 66D of the Finance Act, 1994. Besides, the appellant had commenced discharging Service Tax with effect from 01.03.2016 after insertion of Sl. No.9B and d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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