TaxTMI 
TaxTMI 
2020 (2) TMI 759
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Board etc. The appellants in addition to providing coaching were also selling text books published by M/s MKC publication. For the facility of some of the service recipients, the appellants were also providing hostel facility. On 01 February, 2017 business premises of the appellant was searched by the officers of Revenue and they have also recorded statements of Shri Saurabh Singh, Director the other appellant. Between 01 February, 2017 and 03 October, 2017 appellant deposited service tax amounting to Rs. 72,68,569/- for the period from 01 April, 2012 to 31 March, 2017 along with interest of Rs. 27,98,931/- and penalty at the rate of 15% to the tune of Rs. 10,90,285/- in terms of Second proviso to Sub-section (1) of Section 78 of the Finance Act, 1994. During the period from 2012-13 to 2015-16, as per balance sheet and P & L Accounts appellant collected towards tuition fee Rs. 4,04,34,904/-. In addition appellant received Rs. 3,25,64,500/- towards sale of books and forms. During the same period hostel charges recovered by the appellant were Rs. 2,62,51,328/-. On 20 November, 2017 appellants were issued with a show cause notice with a proposal to consider all the receipts by appel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e to pay Service tax on legal service, as the payments were made to the consultants and not to the advocates; (v) demand of Service Tax of Rs. 2,93,738/- on amount of Rs. 23,76,520/- during 2013-14 on account of alleged difference in books of accounts, is not sustainable, (vi) they were not liable to pay Service tax for availing taxi service, as the taxis were non air-conditioned, and thus, exempted under clause 23(b) of Notification No.25/2012 dated 20.06.2012. (vii) they were eligible for cum-tax value benefit, (viii) extended period of limitation was not invocable and (ix) imposition of penalties under Sections 77(1)(a), 77(1)(e), 77(2) & 78 of the Act, was unjustified." 3. The learned Commissioner (Appeals) through the impugned has held that around Rs. 45 lakhs deposited by appellant could not be considered under proviso to Sub-section (1) of Section 73 since appellants had not deposited entire demand of service tax of around Rs. 1.30 crore. Therefore, he rejected the contention of the appellant that there was no need to issue show cause notice in respect of service tax on tuition fee collected towards providing commercial training or coaching service. The learned Commission....
X X X X Extracts X X X X
X X X X Extracts X X X X
....formula can be laid down to determine whether a service is naturally bundled in the ordinary course of business. Each case has to be individually examined in the backdrop of several factors some of which are outlined above." On examination of the same he has rejected the contention of the appellants that the sale of books and hostel charges cannot be bundled with provision of commercial training or coaching service. He further held that sales value of books was value of study material and held that it needs to be added to the consideration. He has allowed cum duty benefit to the appellant and reduced the confirmation of demand to Rs. 1,15,30,093/-. He further reduced penalty under Section 78 but did not interfere with the penalty imposed on the other appellant. Aggrieved by the said order both the appellants are before this Tribunal. 4. The learned counsel for the appellant Shri Nishant Mishra has submitted that the books and forms sold by the appellant were sale of goods and that the books were published by M/s MKC Publication and they were also available to anybody for purchase and it was not compulsory that they would be available to only those service recipients who were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Rs. 2,93,738/- since the documents based on which the said demand was raised does not pertain to appellant. He has further submitted that the appellant was not liable to pay service tax of Rs. 45,761/- on expenses towards taxis since the taxis were non air-conditioned. In so far as bundling of the service are concerned, learned advocate for the appellant has submitted that there are such provisions in said Section 66F of Finance Act, 1994 indicating that only such service can be bundled wherein an element of provisions of one service is combined with an element of provision of any other service. He has submitted that commercial training or coaching services was independent of provision of hostel facility. Further every service recipient of commercial training or coaching was not required to avail hostel facility. There were many students who were availing hostel facility but were not receiving service of commercial training or coaching and therefore, they cannot be bundled. He further submitted that due to the reasons stated for the service provider the penalty on the other appellant is not sustainable. 5. Learned A.R. has submitted that all the services were provided together ....