In re State Examination Board (GST AAAR Gujarat)
(i) The appellant State Examination Board is eligible to claim exemption benefit under Sl. No. 66 (aa) of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 (as amended from time to time), in respect of services supplied for the exams mentioned at Sr. No. 1 to 12 of the list of exams (mentioned at para-26 above).
(ii) The appellant is not eligible to claim exemption benefit under Sl.No.5 of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 (as amended from time to time), in respect of services supplied for the exams mentioned at Sr.No. 13 and 14 of the list of exams (mentioned at para-26 above) for the reasons discussed hereinabove. In addition, the appellant is also not eligible to claim exemption benefit either under Sl. No. 5 or Sl. No. 66 (a) & (aa) of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 (as amended from time to time), in respect of services supplied for the exams mentioned at Sr. No. 15 of the list of exams (mentioned at para-26 above) for the reasons discussed hereinabove.
Read AAR:- State Examination Board not eligible for GST Exemption
FULL TEXT OF THE ORDER OF APPELLATE AUTHORITY FOR ADVANCE RULING, GUJARAT
At the outset we would like to make it clear that the provisions of the Central Goods and Services Tax Act, 2017 and Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to as the ‘CGST Act’ and the ‘GGST Act’) are in parimateria and have the same provisions in like matter and differ from each other only on a few specific provisions. Therefore, unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act, 2017 would also mean reference to the corresponding similar provisions in the GGST Act, 2017.
2. M/s State Examination Board (hereinafter referred to as “appellant”) is a Governmental Authority, having registered office at Nr. Govt. Library Sector 21, Gandhinagar 382021. Further it validly holds GST registration certificate bearing No. 24AACTS9590F1Z6 under terms of GST Regime.
3. The appellant has stated that on formation of Gujarat State on 01.05.1960, a department named Education and labour department came into existence and social welfare, labour, prohibition, excise and employment were included in Education Department and later subjects were gradually taken away from the Education and Labour Department on administrative grounds; that since August, 1976, Education Department came into existence as separate secretariat department, which looks after education including primary education, continuous education, literacy education, secondary education, higher education, technical education, pharmacy education.
4. The appellant has stated that the State Examination Board was established by the Gujarat Education Department in November, 1966 to arrange and conduct examinations; that this Board was declared ‘autonomous’ by a Notification No.1099/1081/N dated 26.10.1999 and 24.05.2000 of the Education Department in 1999 and has submitted a copy of the same; that the State Examination Board is registered under Societies Registration Act 1860.
5. The appellant sought ruling from the Gujarat Authority for Advance Ruling [‘GAAR’] with respect to list of 23 exams on the following question-
Whether the applicant is eligible to claim exemption benefit under Sr.No.5 and Sr. No. 66(a) & (aa) of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017?
6. The GAAR examined the issue and observed that out of the list of 23, the 7 exams conducted by the appellant[at Sr. No. 9 to 15 of the list of exams i.e. (i) Elementary Drawing Grade Exam, (ii) Intermediate Drawing Grade Exam, (iii) Primary Scholarship Exam, (iv) Secondary Scholarship Exam, (v) National Talent Search Exam Stage-1(NTSE), (vi) National Means cum Merit Scholarship-Exams(NMMS-Exam) and (vii) Rashtriya Indian Military College, Dehradun-Entrance Exam(RIMC-Dehradun)],can be said to be pertaining to ‘education including primary and secondary schools’.It was stated that since these exams are covered under Entry at Sr. No. 17 (‘Education including primary and secondary schools’) under the list of functions entrusted to a Panchayat under Article 243G of the Constitution of India, the services supplied by the appellant in respect of these exams are eligible for the benefit of exemption available at Sr.No.5 of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017
7. For the remaining 16 exams [exams at Sr. No. 1 to 8 of the list of exams i.e. (i) Diploma in Pre School Education (DPSE), (ii) Diploma in Elementary Education (D.El.Ed.), (iii) Art Teacher Diploma(ATD), (iv) Applied Arts, (v) Drawing and Painting (vi) Sculpture, (vii) Diploma in Home Science, (viii) GCC Type Steno and exams at Sr. No. 16 to 23 of the list of exams i.e. (ix) Department Exam, (x) Teacher Eligibility Test-1 (TET-1), (xi) Teacher Eligibility Test-2 (TET-2), (xii) Head Teacher Aptitude Test (HTAT), (xiii) Teacher Aptitude Test (TAT(Sec.)), (xiv) Teacher Aptitude Test (TAT(HS)), (xv) Head Master Aptitude Test (HMAT) and (xvi) Departmental Exam(Class III)], conducted by the State Examination Board, the GAAR further observed that these exams pertain to employment for the successful candidates i.e. the clearing of these examinations would either make the successful candidates eligible for the posts of the jobs of teachers or lecturers in various government or private schools/colleges or result in them getting employed in various posts of teachers, lecturers, stenos, clerks for PGVCL, forest guards, Jail Sipahi for Home Department, Stenographers for GIDC, CRC/BRC/URC for Education Department, School Inspector for Education Department, Environment Officer and Scientific Officer for GPCB etc. As these exams, being qualifying exams or exams, which results in the employment of the successful candidates, cannot, by any stretch of imagination be covered under the Entry at Sr. No. 17 (i.e. ‘Education, including primary and secondary schools’) under the list of functions entrusted to a Panchayat under Article 243G of the Constitution of India. Therefore, these services supplied by the appellant are not eligible for the benefit of exemption available at Sr. No. 5 of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017.
8. In addition, the GAAR observed that the State Examination Board, although established by the Education Department of the Government of Gujarat, is an autonomous body, established for the sole purpose of conducting various types of examinations and cannot, be considered as a State Education Board as the functions of the State Examination Board are completely different from that of a State Education Board. It was further observed that in order to be eligible to avail the benefit of exemption available under the aforementioned Sr. No. 66 (a) and (aa), the primary criteria of being an ‘Educational Institution’ as defined in para-2(y) of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 has to be fulfilled/satisfied, failing which, the appellant will not be considered eligible for availing the benefit of the said exemption. Since, the appellant does not get covered under the definition of ‘Educational Institution’ thus rendering themselves ineligible for the benefit of exemption of GST available under Sr.No.66(a) and 66(aa) of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 as amended from time to time.
9. In view of the foregoing, the GAAR, vide Advance Ruling No. GUJ/GAAR/R/105/2020 dated 05.11.2020, ruled as under:-
(i) The applicant is eligible to claim exemption benefit under Sr.No.5 of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017(as amended from time to time), in respect of services supplied for the exams mentioned at Sr.No.9 to 15 of the list of exams (mentioned at para-5 above). However, no such exemption is available in respect of services supplied for the exams mentioned at Sr.No.1 to 8 and 16 to 23 of the list (mentioned at para-5 above) for the reasons discussed hereinabove.
(ii) The applicant is not eligible to claim exemption benefit under Sr.No.66(a) & (aa) of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 (as amended from time to time), for the reasons discussed hereinabove.
10. Aggrieved by the aforesaid advance ruling issued by the GAAR for the remaining 16 exams, the appellant has filed the present appeal under the provisions of section 100 of the CGST Act and GGST Act.
Submissions made by the appellant:
11. The appellant has submitted his view on interpretation of the law and stated that the list of 16 (sixteen) examinations conducted by the appellant falls either under Entry No. 5 or under Entry 66(a)&(aa) of the Notification No.12/2017-Central Tax (Rate) dated 28.06.2017.
12. The appellant relied upon entry No. 5 of the Notification No.12/2017-Central Tax (Rate) dated 28.06.2017, which is produced as under:
