Revision proposal for part of the order is not sustainable.

PJ/CASE LAW/2014-15/2449

Case:- EVEREST EDUCATIONAL CHARITABLE TRUST VERSUS C.S.T., CHENNAI

Citation:-2014 (36) S.T.R. 79 (Tri. - Chennai)

Brief facts:- The first appeal is an appeal against an order passed by the Commissioner of Service Tax in exercise of powers under Section 84 of the Finance Act, 1994 for revision of orders passed by a lower authority that is Additional Commissioner. The second appeal is in respect of a refund claim which is sanctioned consequent to the above adjudication order but not paid. In respect of that order also, the Commissioner has passed a revision order in exercise of powers under Section 84 of the Finance Act, 1994. Since both the matters arise from the same adjudication order initially passed by the Additional Commissioner, both the appeals are taken up together for hearing.

Appellant’s contention:- The ld. Advocate for the appellants submits that they were running a charitable trust and conducting coaching and training in various fields of management, marketing, computer hardware engineering, human resources development, etc. They had not paid any service tax for such services rendered by them during the period July, 2003 to November, 2005. Revenue was of the view that the appellants should have paid service tax and therefore, a show cause notice dated 2-4-2007 was issued demanding service tax. On adjudication, the Additional Commissioner came to the conclusion that the appellant was running a charitable organization and not a commercial organization and therefore they were not covered under the definition of “Commercial Training or Coaching Institutes” as defined under Section 65(27) of the Finance Act, 1994. Further, he also gave a finding that if the appellant was not considered as a charitable institution and is covered by the definition in terms of Section 65(27), they are still eligible for exemption under the Notification No. 24/2004-S.T., dated 10-9-2004 for training imparted by “Vocational Training Institutes”. This adjudication order was not challenged by either of the parties. Subsequently, in the year 2008, the Commissioner took a view that the said adjudication order was not legal and proper and issued show cause notice for revising the said order in exercise of powers under Section 84 of the Finance Act, 1994.
In the meanwhile, consequent to the adjudication order, the appellant had claimed refund of the deposit made by them during the investigation stage. The concerned Asst. Commissioner sanctioned the refund. However, this was not paid to them. The Commissioner took up this sanction order also for revision and issued show cause notice dated 18-6-2009. The order passed consequent to the second notice is the subject matter of the second appeal.
The ld. Advocate for the appellants submits that the demand against the appellants was dropped by the Additional Commissioner for two reasons, namely:-
(i) That the appellants were not a commercial organization; and
(ii) That the courses were vocational training courses eligible for exemption under notification No. 24/2004-C.E.
The Advocate argues that since the revision notice dated 10-4-2008 did not raise any proposal for revising the finding regarding the eligibility under exemption Notification 24/2004-C.E., the finding given by the Commissioner on the first issue alone will not be sufficient to sustain the demand. In reply to the Show Cause notice the appellants specifically pointed out that the show cause dated 10-4-2008 does not have any proposal for revising the finding of the original adjudicating authority regarding eligibility for exemption under Notification 24/2004-S.T. However, the Commissioner has not given any finding on this issue and in such a situation, confirmation of demand without revising the second finding in appellant’s favour which has reached finality is not legally sustainable and therefore, both the impugned orders dated 6-3-2009 and 4-1-2010 are not sustainable.

Respondent’s contention:- the ld. AR for Revenue submits that the revision show cause notice dated 10-4-2008 in para-7 proposes to restore all the proposals in the show cause notice dated 2-4-2007 and therefore though the issue of exemption for vocational training is not specifically mentioned in the revision notice, it should be understood to mean that there was a proposal to revise the finding regarding vocational training also. He further submits that in the revision show cause notice also it was mentioned that the courses conducted by them were academic in nature and not vocational. Therefore, he submits that there is no serious defect in the show cause notices for revision.

Reasoning of judgment:- The Hon’ble Tribunal find that there is a specific finding in the initial adjudication order to the effect that training courses conducting by the appellants were vocational training. There is no specific proposal in the revision show cause notice to revise this finding. Even when this issue was raised by the appellant in reply to the revision show cause notice and during the personal hearing also, no finding is given by the revisionary authority on this issue. This in their view is fatal to the proceedings because the finding that they were eligible for the exemption under Notification 24/2004-S.T. had become final and there was no proposal for revising the finding in the show cause notice and here is no finding in the order and no reasoning has been given on this issue. Therefore, the preliminary objection raised by the ld. Advocate for the appellant is valid and they are not going into merits of this issue whether the appellants were running a commercial institute or whether the training was really a vocational training or the question whether extended period of time would be invoked in the original show cause notice.
Consequently, they allow both the appeals with the direction to refund the amount deposited by the appellants during the investigation stage. Both the appeals are allowed with consequential relief.

Decision:-Appeals allowed.

Comment:- The essence of the case is that the adjudication order was passed in favour of the assessee on two grounds, i.e., the assessee was running a charitable trust and so cannot be considered as providing commercial coaching and training. The other ground was that even if it is assumed that the assessee was liable to service tax, then too, they were providing vocational training and were eligible for exemption of notification no. 24/2004-S.T. dated 10.09.2004. However, the revision proceedings initiated by the revenue department only controverted first ground and was silent on the second ground. It was concluded that as there was no proposal for revising the portion of order pertaining to exemption benefit under notification no. 24/2004-ST, the appeal filed by the assessee was allowed and refund was directed to be paid to the assessee.

Prepared by:- Monika Tak

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PJ/CASE LAW/2014-15/2449

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