Whether service tax demanded on “computer training” during the period it was exempted justifiable?

PJ/Case Law/2013-14/1639

Case:- M/s GARGI CONSULTANTS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, ALLAHABAD

Citation:-2013-TIOL-940-CESTAT-DEL

Brief Facts:-As per facts on record the appellant is engaged in providing "Commercial Coaching and Training" services and were registered with the Service Tax Department and were discharging their service tax liability. They were issued a show cause notice dated 22.09.2010 proposing confirmation of service tax amounting to Rs.2,02,939/- on the ground that during the period July 2004 to March 2005 they have provided "computer training" and has not discharged service tax liability on the same.

The appellant contended before the lower authorities during the said period "computer training" was covered under "vocational training". In as much as "vocational training"was exemptedfrom service tax vide notification No. 9/2003-S.T. 12-06-2003 read with subsequent notification No. 24/2004-ST dated 10-09-2004, no service tax was required to the paid on the same. It was submitted that the "computer training" was withdrawn from exemption by issuance of notification 19/2005 dated 7-6-2005, effective from 16-6-2005, and as such liability to pay service tax arose from the said date only. In as much as the period is prior to 16-06-2005, no service tax demand can be confirmed against them. They also relied upon various decisions of the Tribunal as detailed below:-

(i) Doon Institute of Information Tech. (P) Ltd. VS CCE [2008 (12) STR 459 (Tri- Principal Bench) = (2008-TIOL-1566-CESTAT-DEL)
(ii) Sunwin Techno Solutions Pvt. Ltd. Vs CCE, Ranchi [2007 (7) STR 700 (Tribunal) = (2007-TIOL-1392-CESTAT-KOL)
(iii) Uttara Training, Software & Allied Services Vs. CST Banglore 2009 (14) STR 218 (Tri-Banglore) = (2008-TIOL-2480-CESTAT-BANG).

The appellant also contested the demand on the point of limitation.

However, the original adjudicating authorities confirmed the proposed demand along with confirmation of interest and imposition of penalties under various sections of the Finance Act, 1994. Upon appeal, Commissioner (Appeals) upheld the impugned order with modification in the quantum of penalties. Hence the present appeal.

Appellant Contentions:-The appellant submitted that during the relevant period, all the decisions of the Tribunal were in favour of the assessee and it stands held by the Tribunal that "computer training" has been specifically taken out of the exemption only with effect from 16-06-2005, with the issuance of notification No. 19/2005. The period prior to 16-06-2005 will not cover the "computer training institute" in as much as the same is "vocational training", covered by the exemption notification, Learned advocate, however, fairly agrees that the Tribunal's decision in the case of Sunwin Techno solutions Pvt. Ltd., stands reversed by the Hon'ble Supreme Court, when the appeal filed by the revenue was allowed, as reported in 2011 (21) S.T.R. 97 (S.C.) = (2010-TIOL-108-SC-ST). However, he submits that the fact that all the earlier decision of the Tribunal were in favour of the appellant, no malafide suppression, with in intent to evade payment of tax can be attributed to the assessee so as to justifiably invoke the longer period of limitation.

Respondent Contentions:-The Respondent is strongly relies upon the Hon'ble Supreme Court decisions in the case of Commissioner Vs. Sunwin Techno Solutions Pvt. Ltd. and submits that the Hon'ble Supreme Court has held that notification No. 19/2005 was only clarificatory and hence applicable retrospectively, the appellant's service tax liability is required to the sustained.

Reasoning of Judgment:-We have considered the submission from both the parties and perused the record, we find that issue on merits is no longer res-integra. The Hon'ble Supreme Court in the case of Sunwin Techno solutions Pvt. Ltd., referred supra, has held that during the period from 10-09-2004 to 15-06-2005, an assessee providing "computer training" services is required to pay service tax in as much as the subsequent notification effective from 16-06-2005 was only a clarificatory notification and was effective retrospectively.

However, we find that the demand in the present case stand raised for the period July 2004 to March 2005 by way of issuance of show cause notice on 22-09-2010. During the relevant period all the decisions of the Tribunal were in favour of the assessee, laying down that a "computer training institute" is covered by the expression "vocational training institute" and as such, was exempted from service tax. As such when the Tribunal, an expert appellant body, has interpreted the law in favour of the assessee, no fault can be found on the part of the assessee to interpret the law in the same manner and not to pay service tax on the "computer training services". It is only subsequently that the law declared by the Tribunal was reversed by the Hon'ble Supreme Court in the case of Sunwin Techno Solutions Pvt. Ltd. As such we are of the view that there was a bonafide belief on the part of the assessee not to pay service tax on the "computer training services" provided by them. There is no evidence indicating any malafide suppression or mis-statement with an intent to evade duty on the part the appellant. In as much as the demand stands raised against the appellant by invoking the longer period of limitation, we are of the view that the same is not justifiable.

As such we set aside the impugned order and allow the appeal on the point of time bar, with consequential relief to the appellant.

Decision:-Appeal allowed.

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PJ/Case Law/2013-14/1639

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