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TMI Blog2025 (4) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation was initiated. Later, on completion of investigation, a show-cause notice was issued to the appellant on 22.04.2014 (Appeal No.ST/20533/2015) invoking extended period of limitation for recovery of service tax amounting to Rs.2,84,37,891/- for providing taxable services viz. health and fitness and Rs.67,05,560/- for providing 'commercial training and coaching services' during the period October 2008 to March 2013, with interest and penalty. On adjudication, the said demands were confirmed with interest and penalty. Another show-cause notice dated 30.01.2015 was issued covering the period April 2013 to March 2014 for recovery of service tax of Rs.72,33,467/- and Rs.86,048/- on yoga services and for receipt of legal services respectively along with interest and penalty. On adjudication, the said demand was also confirmed with interest and penalty. Hence, these two appeals. 3.1. At the outset, the learned advocate for the appellant has submitted that the issues involved in the present appeals are whether the activities carried out by the appellant viz. yoga / imparting training in yoga are liable to be classified under the category of services 'health club and fitness cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that clinical establishment was one that would treat people after they fall ill and not the one which will prevent people from falling ill. Further, he has submitted that the subsequent Order-in- original passed confirming demand on the same line, when challenged before the learned Commissioner(Appeals) vide Order-in-Appeal dated 13.05.2022, the demands were dropped following the exemption Notification No.25/2012-ST as well as Notification No.42/2016-ST dated 26.09.2016. 3.3. Further, the learned advocate has submitted that the demand confirmed invoking extended period cannot be sustained as the show-cause notice dated 22.04.2014 for the period October 2008 to March 2013 is barred by limitation as there was no suppression or wilfull miststatement of fact. In support, they have referred the following judgments:- i. CCE Vs. Chemphar Drugs & Linaments [1989(40) ELT 276 SC] ii. Pushpam Pharmaceuticals Vs. CCE [1995(78) ELT 401 (SC)] iii. Continental Foundation Vs. CCE, Chendigarh [2007(216) ELT 177 (SC)] iv. Uniworth Textiles [2013(288) ELT 161(SC)] 3.4. The appellant has further submitted that the computation of demand is not correct as the donations received from people ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2010 was given effect retrospectively. He has submitted that if services were provided for a consideration, then even if there was no profit motive, the activity would still be taxable. For the period after introduction of negative list, the learned adjudicating authority observed that since the activities carried out by the appellant are not reflected in the negative list, the same are taxable. The exemption claimed by the appellant under Notification No.25/2012 dated 20.06.2012 also not accepted by the learned Commissioner while observing that the appellant had not produced any evidence to the effect that their activities were in the nature of diagnostic, investigative or therapeutic treatment and consequently held to be not eligible for the said exemption. On the claim of providing charitable services by the appellant, he has submitted that the learned adjudicating authority has categorically held that only those activities which were specified in the said notification could be covered under its scope; hence, in absence of any evidence of charitable activities, the benefit cannot be extended to the appellant. Further, it is held that even if promotion of religion or spiritu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it satisfies the taxable category of "health and fitness centre service" and also failed to discharge service tax in carrying out programmes of teaching in yoga viz. TTC and ATCC, Vastu Shastra course to the trainees / candidates under the taxable category of "Commercial Training or Coaching Services" for the period upto 30.06.2012. Thereafter w.e.f. 01.07.2012 after introduction of the Negative List regime, the appellant even though continued to render these services, failed to discharge the service tax on the same. 8. The main thrust of the argument of the appellant resisting the demand of service tax by the Department on both counts is that all their activities are charitable, spiritual, for wellbeing of the participants and for protection of the traditional Indian culture. The primary aim is that of advancing Gurukul system for which they are engaged in imparting yoga to all those who seek it and also carried out training courses to train persons who could later teach, protect yoga and spread among the general masses. Therefore, the said activities undertaken by the appellant claimed to have fallen outside the scope of the taxable entry of 'health and fitness service'. In sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assage for general well being. However, therapeutic massage does not come in the ambit of A taxable service...... Ayurvedic massages, acupressure therapy, etc given by qualified professionals under medical supervision for curing diseases/disorders will come under the category of therapeutic massages. If the massage is performed without any medical supervision or advice, but for the general physical well being of a person, such massages do not come under the purview of therapeutic massages and they would be liable to service tax'. This illustrates the intention of the legislature or the government with regard to the taxability or otherwise of certain activities which could otherwise be under doubt. From the above instructions/clarifications, it is very clear that those services/activities which provide for the general well being of the participants will fall under the category of health and fitness services and if done by an establishment including the ones added thereon would be taxable. In this case I have noticed that there.js no cogent evidence or any argument on the part of the Ashram that the Yoga professed or practiced at the Ashram were in relation to curing of any ailme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gory of "health and fitness service" during the period October 2008 to June 2012. 12. On the issue of leviability of service tax on TTC and ATTC and also Vastu Shastra, analysing the relevant provisions of taxable service "Commercial Training or Coaching Centre" as defined under Section 65(105)(zze) and the retrospective amendment carried out in the year 2010, the learned Commissioner recorded as follows:- 39. Coming to the levy of service tax on the Teacher Training Courses (TTC) and Advanced Teacher Training Courses (ATTC) and also on Vasthusasthra it was contended that the said activity cannot be classified under Commercial Training or Coaching Services in view of the fact that the department at the first instance tried to classify them under health and fitness centre. They also relied upon the clarification issued by the Ministry of Finance vide instructions dated 01.08.2002 above which stated that "Certain recognized institutes impart diploma courses in yoga. A point has been raised as to whether service tax is leviable an such institutes. It is clarified that such institutes and research centre do not fall in the category of health club and fitness centre and accordingly w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and, therefore, there is no reason to give a restricted meaning to the phrase. This has further been emphasized vide Ministry's DOF No: 334/1/2010 TRU dated 26.02.2010 clarifying the legislative intent in inserting the Explanation to the definition to taxable services as contained in Section 65(105)(zzc). Therefore, the contention of the Ashram that their activities are not commercial in nature and that they are not a commercial entity do not have any bearing in the context of the levy of service tax under the category of commercial training or coaching services as per the definitions contained in the statute and also in view of the specific clarification issued by the Board. 42. Apart from their claim that they are not liable to levy of service tax under the category of commercial training or coaching services in view of the clarification/instruction dated 01.08.2002 of the Board, which I found to be irrelevant in the context of the assessee for the reasons stated supra, they have advanced the plea that the courses conducted by them are recognized by the Government and that visas are issued to foreigners visiting the Ashram for the spiritual programme. On verification of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices particularly Clauses (2) and (4) as claimed. The learned advocate on the other hand claimed by virtue of Notification No.20/2015-ST dated 21.01.2015 and 11C Notification No.42/2016-ST dated 26.06.2016, the services of Yoga has been exempted from service tax w.e.f. 01.07.2012. 15. We find that subsequent to the impugned order, a Notification No.42/2016-ST dated 26.09.2016 was issued which reads as follows:- Exemption to Service Tax on services by way of advancement of Yoga provided by entities registered under Section 12AA of Income Tax Act for the period from 1-7-2012 to 20-10-2015 Whereas, the Central Government is satisfied that in the period commencing on and from the first day of July, 2012 and ending with the 20th day of October, 2015 (hereinafter referred to as the said period) according to a practice that was generally prevalent, there was non-levy of service tax on the services by way of advancement of Yoga provided by entities registered under section 12AA of Income-tax Act, 1961 (43 of 1961) and this service was liable to service tax, in the said period, which was not being paid according to the said practice. Now, therefore, in exercise of the powers conferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic domain is not of any consequence. The information should be in the knowledge or made available to the authorities concerned who need to take a certain decision depending on such information. It is not the case of the appellants that they have been paying applicable service tax on getting registered and have been submitting regular returns to service tax authorities. It is not the case of the appellants that the material information available in the form of various contracts/agreements and balance sheets/ledgers have been submitted to the Department suo motu by the appellants. It is only after investigation has been initiated, the necessary documents were submitted. Thus, the information available in the public domain is of no avail. We find that Learned Adjudicating Authority has rightly relied upon in the case of CCE, Calicut v. Steel Industries Kerala Ltd., 2005 (188) E.L.T. 33 (Tri. - Bang.) wherein it is held at Para 3 as under : "3. We find that in the case of Maruti Udyog Ltd. v. CCE, New Delhi, 2001 (134) E.L.T. 269, the Tribunal has upheld the invocation of the extended period of limitation when the assessees did not declare waste and scrap of iron and steel and alum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is noted that, in the present case, the demand being confirmed is for the period 1-4-2006 to 31-3-2007. Even in this period, a demand of Rs. 69,132/- is for the period 1-4-2006 to 30-9-2006 and the remaining demand is for the period 1-10-2006 to 31-3- 2007. I find from the chronological sequence of events submitted by the appellant along with the appeal that, department, as early as 12-7-2007 asked the details of overseas payments towards external commercial borrowings for three years. Certain details were furnished by the appellant on 22-8-2007. Thereafter, on 27-8- 2007 department informed the appellant, that they are liable to pay Service Tax under Banking and Financial Services as recipient of the service. The appellants, however, did not follow the directions of the department. In the meantime, similar issue relating to convertible alternative reference securities and letter of credit also came up for which the appellant made payments on 12-10-2007 and on 4-1- 2008. Since the appellant did not pay the service tax on the MLA and Agent Bank's service under consideration, the department issued summons to Shri Praveen Sood, an officer of the appellant. The department again aske ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relied upon by the appellant. One such document was ST-3 return and the second one is its own balance sheet and profit and loss account. The authority recorded that the appellant failed to explain the difference. Therefore, the disclosure being found to be faulty, adjudication was completed on the basis of figures appearing in its financial statements. The authority did not give any concession on the statutory dues. It comes out from Para 8 & 9 of the appellate order at page 10. 8. So far as the contention of the appellant in respect of time bar issue and also adjudication under Section 73 is concerned, the appellate authority dealt with the issue in para 10 and he found that one of the element like suppression, which is essential ingredient in Section 73 is present. Therefore, he held that the proceeding was well within time. When he found all these aspects, he made the appellant liable to pay penalty also. He did not give any concession in respect of penalty. 9. We do agree with the ld. Appellate Authority in the matter of the discrepancy noticed by him in respect of the considerations received and appearing in different manner in two different statutory documents. While th ..... 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