TaxTMI 
TaxTMI 
2014 (12) TMI 414
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....to 518 of 2014? 2. Whether the Tribunal was right in passing the impugned order dismissing the appeal of the appellant without considering the merits of the appeal, particularly when the Tribunal itself had admitted vide its stay order dated 27.05.2013 to examine the eligibility of the appellant towards 50% of the course fee collected which is actually towards the cost of course material sold to the trainees at the time of final hearing of the appeal? 3. Whether the Tribunal was right in passing the impugned order dismissing the appeal of the appellant without considering the merits of the appeal, particularly when the Tribunal itself had admitted vide its Mis.Modify order dated 28.08.2013 that the application for raising additional grounds will be considered for further detailed argument at the time of disposal of appeal? 4. Whether the Tribunal was right in not considering the decisions of the co-ordinate Benches of the Tribunal in identical matters holding the issue in favour of the appellant herein inspite of the said decision having been specifically brought to its notice?" C.M.A.Nos.514 to 516 of 2014: 1. Whether the Tribunal was correct in observing that it will not be ....
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....able in open market. Therefore, the Department held that the course materials provided by the assessee for commercial training would form part of the taxable value and chargeable to service tax. Accordingly, the Department demanded service tax of Rs. 1,12,26,207/- on the balance 50% of the gross amount received from the students for the period April, 2005 to November, 2008. Apart from this, there was service tax due since April 2007. Hence, in all, the Department demanded service tax at Rs. 1,21,98,372/-. A show cause notice was issued to the assessee vide SCN No.132/2009 dated 09.04.2009 stating that as to why service tax along with interest and penalty should not be levied. It appears that some amount has been paid pending enquiry. 3. The assessee filed a written submission to the show cause notice. The Commissioner of Service Tax considered the same and held that the perusal of the receipts issued by the assessee to the students showed that the whole amount received by them represents course fee and not for sale of goods. The Commissioner, therefore, held that the course materials are not priced, but only for the purpose of payment of service tax, the assessee deliberately adop....
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.... the total amount penalty payable under Section 76 shall not exceed the service tax payable. vi. I impose a penalty of Rs. 5000/- (Rupees five thousand only) under Section 77 of the Finance Act, 1994." 4. Appeals were preferred by the assessee for the different periods as against the order of the Commissioner of Service Tax before the Tribunal along with applications for an order of stay. By order dated 27.5.2013, in Miscellaneous Order Nos.41372 and 41374 of 2013, the Tribunal came to the conclusion that there was no prima facie case for grant of waiver of pre-deposit. However, considering the plea of the appellant, directed the appellant to deposit a sum of Rs. 40.00 lakhs within a period of six weeks. For better clarity, the relevant portion of the order of the Tribunal reads as follows: "7. Opposing the prayer, the Ld. A. R. for Revenue submits that the value of the study materials has been arbitrarily fixed just to avoid payment of appropriate service tax. He points out that the material in question is not sold independently of the training service and is of no value independent of the service. He submits the cases where the Tribunal allowed exemption there was evidence tha....
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.... India reported in 2004 (170) ELT 3 (Bom), holding that the Tribunal had powers to modify its order, but the power of review alone is not there. 8. It is then pleaded by the appellant that in view of the decision of the Supreme Court in the case of Gammon India Ltd. V. Commissioner of Customs, Mumbai reported in 2011 (269) ELT 289 (SC), the decision of the Bangalore Tribunal should have been given credence by the Tribunal in the present case by allowing modification and ought not to take a different view. The decision of the Supreme Court in the case of Commissioner of Central Excise V. Sunwin Technosolution P. Ltd. reported in 2011 (2) STR 97 (SC) is distinguishable on facts, and that, the appellant 's business is in the nature of vocational training and therefore, should get exemption. 9. The Tribunal considered all the above-said pleas and came to the conclusion that the activity of the appellant relates to testing of software and is primarily connected with computer software development and is covered by exclusion clause under Notification No.24/2000-ST as amended by Noft.19/2005-ST. All the nine petitions were taken up by the Tribunal and by order 28.8.2013, the Tribunal....
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....f the service tax has been discharged and for the balance, it was claimed that it relates to sale of course material, eligible for exemption. This plea was primarily declined in paragraph 5 of the order of the Tribunal dated 27.5.2013 stating that only standard text books will be considered for exemption and the plea of the appellant was not accepted in paragraph 7 of the order dated 27.5.2013. On the contrary, on verifying the sample receipts and invoices, the Tribunal came to the conclusion that the amount received from the trainees as course fee was artificially split to avoid payment of service tax. We, therefore, find no error in the order of the Tribunal. 14. The next plea that Notification No.24/2004-ST dated 10.9.2004 provides exemption for vocational training imparted by vocational training institutes. The said Notification was amended by Notification No.19/2005-ST, which inserted a proviso and explanation, and makes it clear that Notification No.24/2004 will not apply to taxable services provided in relation to commercial training or coaching by a computer training institute. According to the Department, the appellant is a computer training institute. The Tribunal was ju....