TaxTMI 
TaxTMI 
2019 (5) TMI 1249
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....er section 75 of the Act and penalty has also been imposed under sections 76 and 77 (2) of the Act. 2. The aforesaid demand of Service Tax is based on the allegation that the Appellant provided 'commercial training or coaching' services to students between April, 2012 to June, 2012, whereas the case of the Appellant is that the consideration received from the students was only towards the conduct of a test known as 'International English Language Testing System' (hereinafter referred to as IELTS) and no 'commercial training or coaching' was imparted. 3. It transpires from the record that the Appellant had entered into an agreement on 9 September, 2010 with IELTS, Australia. This IELTS Centre Agreement granted a license to the Appellant to operate the business of IELTS Test Centers from various locations in India. IELTS, which is called 'International Standardized Test of English Language Proficiency' is widely accepted as a reliable means to determine whether a candidate can study in english medium language. Under the agreement, the Appellant was required to conduct the test in two modules namely, Academic Module or General Training Module. The Academic version of the module ....
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....ter alia stated that the Appellant was only required to conduct the test in India and it had nothing to do with the preparation of any module or guiding/assisting any student for succeeding in such a test. It was specifically stated that the Appellant was not providing any coaching or training to the students taking the test. The Appellant further pointed out that prior to October, 2010, IELTS Australia Pty. Ltd. was conducting the test in India through Planet Education Exams Pvt. Ltd. but from October, 2010 the Appellant had been given the license to conduct the test in India. This test has two modules known as the Academic Module and the General Training Module. It was further stated that for the purpose of conducting the test, the appellant initially conducts test activities in which a person enrolls for the test after paying the requisite fee of Rs. 7,900/- and thereafter the Appellant holds the test, and declares the result. The Appellant, therefore, contended that it was not conducting any commercial training or coaching as for providing commercial training or coaching service, a person has to necessarily impart knowledge or skill which the Appellant, by no stretch of imagina....
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....due to the fact that the activity relating to conducting of test has already been out-sourced by the notice to various sub-contractor. I also find that those sub-contractors are also paying service tax on that amount. This fact has not been denied by the notice. Thus, I am of the considered view that the amount of Rs. 550/- per candidate retained by the notice during the process of conducting IELTS test does not relate to activity of invigilator, as claimed by the notice. 4.10. As regard contention of the notice that they are not providing any commercial training or coaching to any candidate enrolling with them for conducting IELTS test, I have gone through the official web-site of the notice http://www.idp.com/india/studyabroed/stepbystepguide which shows that the Noticee for conducting IELTS test also provide support through advise, practice questions, IELTS Master classes and seminars to help the students for better preparation. Besides, the Noticee has also created a "Face-Book" page in the name of "Support and tips for IELTS Test" through which they are providing various tips & support to the students via various articles and video. This also clearly indicates that th....
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....en outsourced to sub-contractor is perverse; (iv) The conclusion drawn by the Commissioner from the website that the Appellant also provides support through advice, practice questions, IELTS Master Classes and seminars to help students for better preparation for IELTS Test is incorrect; (v) The conclusion drawn by the Commissioner in the impugned order from the contents of the Face Book that the Appellant is providing tips and support to the students through request and videos is also not correct; (vi) That not only has the Appellant not provided any coaching or training for the conduct of the test, but even otherwise the Department has not been able to substantiate that the Appellant has received any consideration for the alleged coaching or training; and (vii) That even the contents of the website were never relied upon in the show cause notice nor the Appellant was confronted with these documents. 9. Shri Vivek Pandey, learned Authorized Representative of the Department has, however, supported the impugned order and has submitted. (i) That the activity undertaken by the Appellant clearly falls in the category of "commercial trainin....
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....hts in IELTS. For the purpose of the IELTS Centre administering and delivering IELTS in India in accordance with the terms of this agreement. 3.2. The IELTS Centre shall conduct IELTS testing from locations agreed with IA from time to time under the name described in Part C of the Details Section ("Test Centers")" 13. Clause 5 of the agreement deals with IELTS Centre requirements and is as follows:- "5. IELTS Centre requirements IA Conduct 5.1. The controls exercised by IA (as and IELTS Test Partner) under this agreement in relation to the delivery and administration of IELTS are reasonable and necessary to protect the IELTS brand, the quality and integrity of the IELTS Test, and to maintain the global standards for the delivery of IELTS set by the IELTS Test Partners. IELTS Manuals of Procedure 5.2. The IELTS Centre will, and will ensure its Personnel, comply with the IELTS Manuals of Procedure at all times. Standards 5.3. The IELTS Centre will operate the Test Centres: (a) in accordance with applicable laws and the requirements of relevant Authorities; (b) to actively and diligen....
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....e IELTS Administrator's Manual, other relevant documentation and this agreement; (c) comply with the IELTS Code of Practice and any reasonable directions of IA. Replacement of Administrators/ Test Delivery Personnel 8.3. If, for any reasons: (a) Administrators/ Test Delivery Personnel become unable, or fail, to perform their obligations under the IELTS Manuals of Procedure or the IELTS Code of Practice; or (b) It otherwise become necessary to remove (temporarily or permanently) or replace any Administrators/ Test Delivery Personnel. Or to involve any other person in the administration of the Test Centers, the IELTS Centre will, as its own cost promptly provide a person who is of at loast equivalent skills, qualifications and experience to the outgoing Administrators/Test Delivery personnel. Examiners to be accredited 8.4 The IELTS Centre will only use a person to examine or mark IELTS Test candidates who is approved and certified by IA for both writing and speaking examinations (an Examiner). 8.5. The IELTS Centre will ensure that each Examiner. (a) Sings the confidentiality undertaking set out in the ....
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....al the relevant clauses of the agreement reproduced above clearly show that the agreement is with regard to the holding of the IECTS Test by the Appellant. There is nothing in the agreement which may require the Appellant to coach or train any candidate desires of appearing at the IELTS Test nor any consideration in terms of money is earmarked for this purpose. 18. There are two modules of IELTS Test, namely the Academic Module and the General Training Module. The details of these two modules are as follows:- IELTS Academic IELTS Academic is for test takers wishing to study at undergraduate or postgraduate levels, and for those seeking professional registration. IELTS General Training IELTS General Training is for test takers wishing to migrate to an English-speaking country (Australia, Canada, New Zealand, UK), and for those wishing to train or study at below degree level. 19. The test is an internationally recognized english language proficiency test and measures the ability of individuals to communicate in english across under four language skills, namely listening, reading, writing and speaking. A report for each of the four skills is m....
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....has also been found by the Commissioner in the impugned order. The agreement dated 9 September, 2010 does not in any manner indicate that the Appellant is required to conduct any training or coaching for the students desirous of appearing at the test. For this purpose reliance has, however, been placed by the Commissioner on the information available on the website. This was not a part of the earlier show cause notice dated 17 April, 2013 or show cause notice dated 6 May, 2014. In any case, a perusal of the information available on the website does give an indication that free IELTS practice materials are available but there is nothing in the website which may indicate that it is the Appellant that will be providing such activity. Merely because the website of the Appellant informs the candidate that free support materials can be found on other sites cannot lead to an inference that the Appellant is providing such services. Likewise, the contents on the "face book" also do not convey that the Appellant is providing such service. In any view of the matter, the Appellant has not received any consideration for any of these alleged activities as is not only clear from the agreement but....