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TMI Blog2024 (7) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Notification No 25/2012-ST nor the Circular No 172/7/2013, provides for any exemption or clarifies in respect of the Business Auxiliary Services Provided by the appellant to their service recipient i.e. SOLCIL. Both the service provider and service recipient are located in taxable territory and thus the service tax has been correctly levied on the services provided by the appellant to SOLCIL. Appellant has not provided any services in nature of auxiliary education services to any educational institution either in India or outside, for claiming the benefit of exemption under Notification No 25/2012-ST (S No 9). Both the authorities have concluded that the exemption claimed by the appellant is not admissible to them. Appellant has not come with clarity to specify the reason for claiming the exemption and refund even in the appeal filed. As observed earlier service tax is transaction based levy and should be determined only after examining the terms of agreement between the service provider and service recipient - Appellant having failed to clarify in respect of exact nature of transaction before the authorities below, there are no perversity or illegality in rejection of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 We have heard Shri Dharmendra Srivastava, Chartered Accountant Shri Md. Suhail, Advocate for the appellant and Shri Santosh Kumar, Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel submits that: Appellant is an authorized Business Associate of SOLCIL to counsel students for admission to international MBBS Program and other courses as may be authorized by SOLCIL specifically Activities of counseling of students for admission to educational institutions are specifically covered by inclusive part of definition of auxiliary educational services being services in relation to admission to educational institutions hence, these activities get exempted by entry No. Notification No. 25/ 2012-ST dated 20. 06. 2012. Impugned order misconstrues entry 9(a) of the Notification No. 25/2012-ST dated 20.06.2012. The said entry nowhere states that the exemption from tax would not be available if the educational institution is such that it is located outside the taxable territory; Order-in-Original itself acknowledged in the finding (h) (iv) of the order that Chinese medical universities and colleges are not in the purview of Finance Act, 1994, being located ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admission is exempted from service tax, they stopped paying tax and filed refund claim with the department To comprehend the statutory provisions in this regard, the relevant portion of notification no. 25/2012-ST and CBEC circular no. 172/7/2013 are reproduced below: Notification no. 25/2012: exempts the following taxable services on which service tax is leviable under section 66B of the said Act. 9. Services provided to or by an educational institution in respect of education exempted from service tax, by way of,- (a) auxiliary educational services; or... 2. Definitions. - For the purpose of this notification, unless the context otherwise requires, (f) auxiliary educational services means any services relating to imparting any skill knowledge, education or development of course content or any other knowledge - enhancement activity, whether for the students or the faculty, or any other services which educational institutions ordinarily carry out themselves but may obtain as outsourced services from any other person including services relating to admission to such institution, conduct of examination, catering for the students under any mid- day meals scheme sponsored by Government, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en any exemption available to such services provided in India cannot be made available to the services provided out of India. During the personal hearing, the appellant have argued that since their service is provided to a non taxable territory, the tax becomes automatically exempted and as such the notification no. 12/2012 (supra) is available to them. I find that auxiliary educational services have been exempted in India because main service of imparting education by educational institutions in India is not taxable. But in the instant matter it is not known as to whether the main service of imparting education is taxable or not in China. Therefore, although the services provided by the appellant is covered by the inclusive part of the definition of Auxiliary Educational services' given in the Mega exemption notification no. 25/2012-ST supra) but the benefit of this exemption cannot be extended to them because it is not an auxiliary service to education provided in taxable territory of India. Thus the plea taken by the adjudicator for rejecting the refund claim of the appellant that the basic service i.e. education being provided is outside the periphery of the Service Tax as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OLCIL for which they raised invoices on them and received payment from them. They were providing the services as business associate of SOLCIL and were paying the service tax after obtaining registration under the category of business auxiliary service. Neither the entry at Sl. No 9 in the Notification No 25/2012-ST nor the Circular No 172/7/2013, provides for any exemption or clarifies in respect of the Business Auxiliary Services Provided by the appellant to their service recipient i.e. SOLCIL. 4.9 Both the service provider and service recipient are located in taxable territory and thus the service tax has been correctly levied on the services provided by the appellant to SOLCIL. Appellant has not provided any services in nature of auxiliary education services to any educational institution either in India or outside, for claiming the benefit of exemption under Notification No 25/2012-ST (S No 9). 4.10 The show cause notice specifically records and observes as follows: 2. The Claimants have indicated in their Refund Claim that they deal with Educational Service, related to the admission of students in Professional Colleges, through Saraswationline.com India Limited and had been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing documents with Bank s confirmation, original Invoices, authenticated Bank Statement showing amounts received and copy of agreement with M/s.Saraswationline.Com, so as to clearly reveal and establish that the Service Tax paid by them had not been passed on to the Service Recipient However the Claimants have not filed the said documents. 5. The claim of the refund under reference has to be considered in terms of the provisions of Section 11B of the Central Excise Act, 1944, made applicable to the Service Tax matters, through Section 83 of the Finance Act, 1994. In the Explanation B (f) of Section 11B of the Central Excise Act, 1944, the relevant date for the purpose of that Section has been defined as in any other case, the date of payment of duty, for computing the period of one year (from relevant date), prescribed under sub Section (1) of Section 1IB of the Central Excise Act, 1944. In this regard it appears that the subject Refund Claim is partly hit by limitation as an amount of Rs. 55,937/,- seems to have been paid 5-7-2013 while the claim Dt. 22-9-2014, has been filed on with the Department 23-9-2014, i.e., after the expiry of one year on from the relevant date, as aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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