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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.
When the department wanted the tax liability of the assessee to be revised, it was incumbent on the appellate authority to record a clear finding and to spell out in quantitative terms what should be the correct tax liability of the assessee.
Even after the deletion of expression activities related to business from the definition of input services, the credit of Service tax paid on the sales promotion activities and on the services of sales of dutiable goods on commission basis would be admissible as credit. As such, it is the contention of the learned advocate that even after the activities related to business, stand deleted from the definition of inputs credit as per the Board’s Circular, the Service tax paid on commission on agent services would be available.
The assessee received ‘turnover charges’, stamp duty, BSE charges, SEBI fees and Demat charges contending that the same was payable to different authorities and claimed that the same is not taxable. But the revenue taxed the same on the ground that such receipt by stock broker was liable to tax. The revenue failed to bring out whether the turnover charges and other charges in dispute in these appeals received by assessee were commission or brokerage.
Adjudicating authority seeks to include the value of free supplied materials received by the appellant in the gross value of the services rendered by the appellant. It is seen that after inclusion of gross value, the adjudicating authority has not given the benefit of Notification No. 15/2004, dated 10/09/2004 in the form of abatement of 67%.
Issue involved in the present appeal is whether the refund claim filed by the respondent is hit by the time limitation as prescribed under Section 11B of the Central Excise Act. The refund claim in present case was filed on 28th April 2010 for refund of service tax paid by them. The original authority in para 2.1 of the Order-in-Original has stated that the TR-6/GAR-7 challans filed along with the claim and the statement furnished by the claimant shows that the service tax payments were made during the period 2006-07 and 2007-08 and last such challan was dated 1st December 2007 and it was also noticed that service tax liability for the period May 2004 to March 2006 was discharged in May 2006. We find that refund claim was submitted by the respondent with the office of Assistant Commissioner of Central Excise on 28-4-2010 under Section 11B of the Central Excise Act as made applicable to the service tax matters vide Section 83 of the Finance Act, 1994. Refund claim was to be filed within a period of one year from the date of payment of excise duty/service tax. We, therefore, find that the refund claim was filed much after the time-limit of one year as prescribed under Section 11B of the Central Excise Act.
There being no dispute to the services rendered by the appellant under the category of Travel Agent Services, the benefit of notification which are there in the statute, should have been automatically be given to the assessee. Even in the absence of any such claim the benefit should have been granted to them. Be that as it may, the specific plea of the assessee that they are eligible for the benefit of Notification No. 6/2005-ST, cannot be disregarded for the services rendered up to the first four lakhs, during the period April 2005 to March 2006, for which the appellant is eligible for the benefit of notification, provided he has not crossed the limit of Rs. Four lakhs during the preceding Financial Year.
