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Appellants made a request before the adjudicating authority for an opportunity to produce evidence to show that the cost of design and drawing are included in the assessable value of patterns/castings and appropriate duty is paid. This contention has not been taken into consideration by the adjudicating authority. In view of the above, the impugned orders are set aside and the matter is remanded to the adjudicating authority to decide the matter afresh upon showing the proof of deposit of the amount so directed and after giving adequate opportunity of hearing to the appellants.
Entire demand on the freight element is based on Rule 2(1)(d)(v) of the Service Tax Rules, 1994. Sub-clause (v) was inserted in Rule 2(1)(d) only on 3.12.2004 and the same cast Service Tax liability on the person paying the freight. Prima facie, the appellant did not pay the freight and therefore there is no tax liability on their part.
Expenses incurred to provide taxable services shall be part of assessable value if such expenses are inseparable and are integrally connected with the performance of the taxable services. Such expenses shall necessarily form part of the assessable value. Therefore, the assessee was not entitled to any relief on account of expenses not disputed, for inclusion while determining assessable value.
The assessee had reflected the service tax liability on account of service provided by him during the period April, 2007 to September, 2007 in the ST-3 returns filed with the department. The reason for delay in making payment had been sufficiently explained by the assessee in his reply, stating that due to sudden crash in the stock market, the main broker of whom he was the sub-broker, defaulted in making the payment. This had resulted in non-payment of service tax liability in time. The reason is bona fide in non-payment of service tax in time.
Prima facie coaching material has intimate connection with the commercial coaching provided by the assessee and the contents of the study material are relevant to the coaching to make the later fruitful and meaningful so that the enrolled candidates are benefited out of commercial coaching. There was no evidence to effect that these coaching materials are sold as text books by book sellers and no way useful to the enrolled students. So also there is no evidence to suggest that these coaching materials by any means enjoy exemption under law and not taxable.
Since the appellant prays that it has a case for consideration under Section 80 of the Finance Act, 1994 it is desirable to bring to record about the date on which liability arose, date of return ought to have been filed, date on which admitted tax liability should have been discharged and the date of discharge of duty liability. If these particulars neatly come out to record, that shall enable the authority to properly consider the plea of the appellant as whether it is entitled to the benefit of Section 80 of Finance Act, 1994.
Since the appellant is a charitable institution, can they be considered as a commercial training or coaching centre ? Here again the answer is negative. So long as the appellant imparts training or skill in any subject or field other than sports for a consideration, the said activity would come under the purview of commercial training or coaching. It is on record that the appellant is collecting substantial amount of fees from the students for imparting training. Merely because the appellant is registered as a Charitable Institution under the Income-tax Act, 1961, that does not entitle the appellant to claim exclusion from the ambit of service tax. Thus it is obvious that the appellant does not come under the exclusion clause of the definition of commercial training or coaching centre.
The second issue involved in the appeal is levy of service tax on tickets sold before 1.5.2006 and used after 1st May 2006. The appellant’s contention is that the appellant sold the tickets to the passenger prior to 1.5.2006 and at that time there was no provision under the law of charging service tax Therefore, the service tax cannot be demanded from them of tickets sold prior to 1.5.2006. On going through the definition of the taxable service under this category we find that Section 65(105) indicates that taxable service would mean the services provided by the service provider to the service recipient as well as would also mean the services to be provided at a later date. The appellant being a service provider is required to make payment of service tax on the taxable services which were required to be provided on and after 1.5.2006. The levy of Service Tax has no connection with the receipt of payment and the service tax is required to be paid when the service is provided.
The appellants are actually implementing applications software like SAP, Oracle, people soft. They are also into upgradation of application software from existing release level to higher version. They are also specifically into running of electronic data processing centre, business of data processing, word processing etc. Even if there is any advisory role, the same appears to be limited only to the field of Engineering and the services would fall under the category of consulting engineers only.
Appellant has been issued with a show cause notice on 19.05.2004 for the demand of Service Tax liability for the period 16.11.1997 to 2.6.1998 on the ground that the appellant has received the services of goods transport agency/operator which is liable to pay service tax as per the retrospective amendment and has not filed returns and discharged Service Tax. On perusal of the show cause notice, we find that the show cause notice has been issued under section 73 of the Act for demand of service tax and consequent for the penalties and interest.
