TaxTMI 
TaxTMI 
2020 (3) TMI 154
X X X X Extracts X X X X
X X X X Extracts X X X X
....ny") is a company incorporated under the provisions of the Companies Act and engaged in the business of printing. The second petitioner is a Director of the petitioner - company. 2.1 Service tax was introduced in India for the first time in 1994 under Chapter V of the Finance Act, 1994 with effect from 1st July 1994, which came to be amended from time to time. Chapter V of the Finance Act, 1994 has been omitted by section 173 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'the CGST Act'), which came into force from 1st July 2017. 2.2 The petitioner - company is registered with the service tax department for payment of service tax on reverse charge mechanism since 15.07.2013. In the course of its business, the petitioner - company has provided services in relation to examinations conducted by the Maharashtra State Board of Secondary and Higher Secondary Education, Pune, Maharashtra State Council of Examination, Pune, Gujarat Secondary and Higher Secondary Education Board, Gandhinagar and Gujarat Technological University, Ahmedabad (hereinafter referred to as the 'Boards/University'). 2.3 It is the case of the petitioners that sin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n relation to such services, the petitioner firm, as service provider, had paid service tax during the period of 01.07.2013 to 30.09.2013. It is the case of the petitioners that since the services provided to/by an educational institution in respect of education by way of auxiliary education services, has been exempted from service tax vide Notification dated 25/2012-ST dated 28.06.2012 as amended, and since the petitioner firm had paid the service tax on its own, the petitioner firm filed a refund claim in relation to the same. The competent authority namely the Assistant Commissioner, Central Excise and Service Tax found that the tax in reference was borne by the assessee and not passed onto any one and further that the services in reference were exempt. Accordingly, by an order dated 01.10.2014, refund was allowed in favour of the petitioner firm. Against the said order, the Department preferred an appeal, wherein, the appellate authority held that the petitioner firm was eligible to refund; however, the same was not allowed in terms of section 12C of the Central Excise Act, 1944 as in the opinion of the authority, it would amount to unjust enrichment. It was, accordingly, direc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ught to the notice of the respondent - authority that it has no authority to initiate any inquiry after the omission of the Chapter V of the Finance Act, 1994 and prayed that the inquiry pursuant to the communication dated 30.11.2017 be dropped. It is the case of the petitioners that during the period when the provisions of Chapter V of the Finance Act, 1994 were in force, no show-cause notice was issued, nor was any inquiry pending concerning short/non-payment of service tax. It is the case of the petitioners that it was the understanding of all concerned, including the Department that the institutions referred to hereinabove were educational institutions and the persons providing services covered under the exemption notification to such institutions were exempt from payment of service tax. The petitioner firm had, accordingly, been assessed and found to be eligible for grant of refund. The assessment, taking into consideration the exemption, has been found to be in order in the two audits undertaken by the competent authority. According to the petitioners, therefore, the question of there being any short/non-payment of service tax would not arise. 3.9 By a communication dated ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wer to the show-cause notices. In support of such submission, the learned senior standing counsel placed reliance upon the decision of the Supreme Court in Union of India v. Coastal Container Transporters' Association, rendered on 26th February 2019 in Civil Appeal No. 2276 of 2019, wherein, the court held thus: "7. In the writ petition filed before the High Court, a preliminary objection was raised on behalf of appellant nos.2 and 3 with regard to maintainability of the petition. Firstly, it was pleaded that as the writ petition itself was directed against the show cause notices, such petition was not maintainable. Secondly, on the ground that as the controversy relates to classification of services and even if the show cause notices were to culminate into final order, appeal would lie before the Supreme Court, as such, High Court, in exercise of writ jurisdiction, should refrain from entertaining the petition which involves a classification dispute. It was pleaded that it was not either a case of lack of jurisdiction or a case where the principles of natural justice are violated, so as to entertain the petition in which only show cause notices were challenged." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 11 SCC 651, relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladi Drugs & Pharma Ltd. v. Union of India, 2004 (166) ELT 153 (SC), relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage." 4.2 It was submitted that the above decision would be squarely a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ghi, learned Senior Counsel appearing for the appellant Department, that it was not appropriate for the High Court to deal with the said writ petition, bypassing the adjudicatory machinery provided under the Act, more so when the statutory appeals against the adjudication orders are also provided. However, we find that the High Court has simply gone by the contract in question, which was entered into between the respondent and M/s. BirIa Corpn. Ltd. and taking into consideration all the averments, which were made in the show-cause notice, on the basis of admitted facts, it has come to a conclusion that even when the allegations in the show-cause notice are accepted, the said contract does not amount to providing any "Cargo Handling Service" as defined under Entry 23 of Section 65 of the Act. Therefore, we are of the opinion that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts, as admitted by the parties, which were so specifically recorded by the High Court itself." 5.3 Reliance was also placed upon the decision of this court ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he impugned show-cause notices (reference to which shall be made subsequently), to submit that the impugned show-cause notices are more than simple show-cause notices inasmuch as there is a conclusion therein as regards the liability of the petitioners. Reliance was placed upon the decision of the Supreme Court in Siemens Ltd. v. State of Maharashtra, (2006) 12 SCC 33, wherein, it has been held thus: "9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma, (1987) 2 SCC 179, Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 and Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28, but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I. Shephar....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against. 29. In the instant case from the underlined* portion of the show-cause notice it is clear that the third respondent has demonstrated a totally closed mind at the stage of show-cause notice itself. Such a closed mind is inconsistent with the scheme of Rule 43 which is set out below. The aforesaid Rule has been framed in exercise of the power conferred under Section 33 of the Marine Products Export Development Authority Act, 1972 and as such that Rule is statutory in nature. 30. Rule 43 of the MPEDA Rules provides as follows: "43. Cancellation of registration.-Where the Secretary or other officer is satisfied that any person has obtained a certificate of registration by furnishing incorrect information or that he has contravened any of the provisions of this rule or of the conditions mentioned in the certificate of registration, or any person who has been registered as an exp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s been very strongly contended that it is clear that the officer concerned has a mindset even at the stage of framing of charges and we also do find some justification in such a submission since the chain is otherwise complete." After para 25, this Court discussed in detail the emerging law of bias in different jurisdictions and ultimately held in para 35, the true test of bias is: "35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom-in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained:" (emphasis supplied) 35. Going by the aforesaid test any man of ordinary prudence would come to a conclusion that in the instant case the alleged guilt of the appellant has been prejudged at the stage of show-cause notice itself." 5.8 Reference was also made to the contents of the affidavit-in-reply filed on behalf of the respondents, wherein there are categorical averments to the effect th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment) if the High Court is satisfied that the case involves a substantial question of law." 6.1 Thus, against an order passed by the Appellate Tribunal, appeal lies to the High Court; however, the order which is subject matter of challenge should not relate to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment. Since classification of goods or services has a direct relation with the rate of duty, an appeal against an order of the Appellate Tribunal relating to a classification dispute would also lie before the Supreme Court and not the High Court. 6.2 Since an appeal against a matter which relates to the determination of a question having a relation to the rate of duty or value of goods for the purposes of assessment lies to the Supreme Court and not to the High Court, this court ordinarily, would not entertain such a dispute in exer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as defined under Entry 23 of Section 65 of the Act. Therefore, we are of the opinion that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts, as admitted by the parties, which were so specifically recorded by the High Court itself." 6.8 In the facts of the present cases, this court is required to examine a legal issue, viz. as to whether on the allegations made in the show-cause notices, the institutions to which services have been provided by the petitioners are educational institutions; and no disputed questions of fact are involved. In these circumstances, the contention that these petitions under article 226 of the Constitution of India are not maintainable before the High Court does not merit acceptance. 6.9 Reference may also be made at this stage to the contents of the show-cause notice dated 20.04.2018 issued to the petitioners in Special Civil Application No. 20748 of 2018, the relevant part whereof, are extracted hereunder: 6.9.1 In the last sub-paragraph of paragraph 7.5.2 of the show-cause notice, it has been st....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ir institution do not appear to qualify as educational institutions. M/s. SMPL is engaged in providing such services to these Boards/University and is receiving consideration against such services from them. However, it appears that with an intention to evade payment of service tax, they have misstated these organizations as "Educational Institutions" to claim incorrect and ineligible exemption on their liability of payment on service tax on the gross consideration received from these Boards/University for the services provided to them. 7.6.2 It also appears that even before insertion of definition of educational institution vide Notification No. 06/2014-ST dated 11.07.2014, the (i) GSEB (ii) GTU (iii) MSEB and (iv) MSCE were not educational institutions as per the definition of educational institutions under the Section 2(b) of the Gujarat Educational Institutions (Management) Act, 1976 as described in para 7.5.3.5 and 7.5.3.6 above." 6.9.5 In the last sub-paragraph of paragraph 7.7.2, it has been recorded thus: "It is relevant to note that not all Universities or such like institution have Departments, Faculties and Students on their roll for imparti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rds/University. Similar conclusive findings have also been recorded in the show cause notice issued to M/s Rajan Travels, the petitioner in Special Civil Application No.7414 of 2019. Under the circumstances, the issuance of the impugned show-cause notices is merely an empty formality, inasmuch as the issues raised therein already stand concluded by virtue of the findings recorded in the show-cause notices. 6.11 The Supreme Court, in Seimens Ltd. v. State of Maharashtra (supra), has held that when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. 6.12 In Oryx Fisheries Private Limited v. Union of India, (supra), the Supreme Court has inter alia held that if on a reasonable reading of a show-cause notice, a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such show-cause notice does not commence a fair procedure especially when it is issued in a quasi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7.2 On the other hand, Mr. Ankit Shah, learned Senior Standing Counsel for the respondents submitted that the authorities are exercising the powers under Chapter V of the Finance Act, 1994, read with section 174(2)(e) of the CGST Act. It was submitted that the petitioners have referred exclusively to provisions of section 173 of the CGST Act whereby, Chapter V of the Finance Act, 1994 has been omitted without referring to the provisions of section 174 of the CGST Act. In this regard, the attention of the court was invited to the savings clause contained in section 174(2)(e). Reliance was placed upon the decision of the Gauhati High Court in writ petition (C) No. 2059 of 2018 in the case of Laxmi Narayan Sahu v. Union of India and others, wherein, the court has held thus: "28. In other words, the proposition laid, down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) is that the continuance of a further proceeding under an omitted Act depends upon as to whether a savings clause is provided in the enactment by which the earlier enactment was omitted. In the instant case, it is taken note of that the provisions of Chapter V of the Finance Act of 1994 were omitted" by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ued or enforced under Chapter V of the Finance Act of 1994, continues to remain in place in spite of such omission of Chapter V of the Finance Act. In other words, Section 174(2)(e) is a savings clause in respect of any investigation, enquiry etc., that was/ to be instituted under Chapter V of the Finance Act of 1994. A conjoint reading of Section 173 and 174(2)(e) would show that while bringing an omission to the provision of Chapter V of the Finance Act of 1994, a savings clause for continuing with the proceedings initiated/ to be initiated was also duly provided. Existence of the savings clause in respect of omission of Chapter V of the Finance Act of 1994 clearly brings it within the purview of the provisions laid down by the Constitution Bench of the Supreme Court in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra). 32. As already elucidated hereinabove, paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) provides that if a statute stood omitted with a savings clause, the savings clause would not render it impermissible for the proceedings initiated/ to be initiated under Chapter V of the Finance Act of 1994, which stood omitted by Section 173 of the CGST Act o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1986) (hereafter referred to as the repealed Acts) are hereby repealed. (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (32 of 1994)(hereafter referred to as "such amendment" or "amended Act", as the case may be) to the extent mentioned in the sub-section (1) or Section 173 shall not- (a) revive anything not in force or existing at the time of such amendment or repeal; or (b) affect the previous operation of the amended Act or repealed Acts and orders or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts: Provided that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded on or after the appointed day; or (d) affect any duty, tax, surcharge, fine, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed against the provisions of the amended Act or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....igation, inquiry, verification, assessment proceedings, adjudication and other legal proceedings as if the Finance Act, 1994 has not been so amended. Therefore, even after the omission of Chapter V of the Finance Act, 1994, by virtue of clause (e) of sub-section (2) of section 174 of the CGST Act, the authority is authorised to institute any legal proceeding under the said Act. The contention that the authority does not have authority to initiate fresh proceedings after the omission of Chapter V of the Finance Act, therefore, does not merit acceptance. 8. Adverting to the merits of the case, Mr. Mihir Joshi, learned counsel for the petitioners in Special Civil Application No. 20748 of 2018 raised two fold contentions. The first contention was that the services provided by the petitioners to the Maharashtra State Council of Examination, Pune, Maharashtra State Board of Secondary and Higher Secondary Education, Gujarat Secondary and Higher Secondary Education Board, Gandhinagar and the Gujarat Technological University, Ahmedabad are exempted from service tax; and the second contention was that the respondent - authorities are not justified in invoking the extended period of limita....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the Supreme Court in Gujarat University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703, wherein, the court has held that the expression "education" is of wide import and includes all matters relating to imparting and controlling education. Reliance was also placed upon a decision of the Supreme Court in the case of P. A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, wherein, the court has held thus: "81. "Education" according to Chambers Dictionary is "bringing up or training; strengthening of the powers of body or mind; culture". 82. In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edn., 2005, Vol. 2) "education" is defined in very Wide terms. It is stated: "Education is the bringing up; the process of developing and training the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the instruction received at school, or college but the whole course of training moral, intellectual and physical; is not limited to the ordinary instruction of the child in the pursuits of literature. It also comprehends a proper attention to the moral and religious sentiments of the child. And it is sometimes used as synonymo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ods and Services Tax, being Advance Ruling No. GUJ/GAAR/R/2018/16, to submit that the authority, while considering the question of exemption in relation to examination related services provided by M/s. Edutest Solutions Private Limited, to the same service recipients, has held that the services provided of printing of questions papers for conduct of examination by such institutions would be covered by Serial No.66 of Notification No. 12/2017, as amended. It was pointed out that the institutions referred to in sub-clause (2) are also described in paragraph 2 of the order and the petitioners are also providing similar services to the same service recipients. It was submitted that principle of law regarding availability of exemption to such services provided to such institutions should, therefore, be followed in the case of the petitioners also. 8.10 As regards the second contention with regard to the invocation of the extended period of limitation, the learned counsel for the petitioners submitted that the respondents themselves believed that the services provided by the petitioners are services provided to educational institutions and therefore, exempt. The respondents had issued....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n found in the action of the petitioners in availing exemption. It was contended that, therefore, it is impermissible to invoke the extended period of limitation. 9.1 Next it was submitted that the show-cause notice suffers from non-application of mind on the part of the authority, inasmuch as, it is held that the Gujarat Technological University is a body corporate in terms of section 3(4) of the Gujarat Technological University Act and, consequently, it has been held that the service tax liability in relation to the services provided does not rest upon the petitioner. It was submitted that the Gujarat Secondary and Higher Secondary Education Board is constituted under the Gujarat Secondary and Higher Secondary Act, 1972. The Board is also a body corporate under section 3 of the Gujarat Secondary and Higher Secondary Act, 1972 and has a perpetual succession and common seal. Similarly, the Gujarat Council of Educational Research and Training (GCERT) and Gujarat State Examination Board (GSEB) are both, body corporates, each of them being a society registered under the Societies Registration Act, 1860. It was submitted that, having held that the petitioner is not liable in relatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....994, and hence, such services are taxable with effect from 01.07.2012. 10.1 It was submitted that on careful reading of the clause (l) of section 66D of the Finance Act, 1994, it is evident that only services provided as (i) pre-school education and education up to higher secondary or equivalent; or (ii) education as a part of qualification recognized by any law for the time being in force; or (iii) education as a part of approved vocational course are non-taxable by virtue of the negative list. It was submitted that it is the case of the petitioners that they provided auxiliary services as defined under clause (f) of the definition provided in the Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 to the Boards/University. It was submitted that the petitioners would be entitled to exemption in respect of auxiliary educational services provided such services are provided to educational institutions, whereas, the Boards/University to whom services have been provided by the petitioners do not fall within the ambit and scope of "educational institution". It was submitted that only those entities would be qualified under the term "educational institution" which provide serv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....OMR Scanning, Data Entry, etc. provided to the service recipients mentioned in the impugned show-cause notice and in case of the petitioners in Special Civil Application No. 7414 of 2019, the services provided are in the nature of rent-a-cab in connection with the examinations held by the concerned Boards/University. It is an admitted position that such services are exempted under section 66D(l) of the Finance Act, 1994 as well as under Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 if such services have been provided to the "educational institutions". The petitioners have not paid service tax on the services provided to the above institutions claiming exemption under serial No. 9 of Mega Exemption Notification No. 25/2012-ST dated 20.06.2012, as amended, applicable to the services provided to educational institutions. The case of the respondents is that the institutions to which the services by way of result processing and conducting of examination related work have been provided by the petitioners, do not provide the services specified in clause (l) of section 66D of the Finance Act, 1994 and are, therefore, not "educational institutions". 13. The moot question th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder any mid-day meals scheme sponsored by Government, or transportation of students, faculty or staff of such institution;" 13.5 With effect from 11th July, 2014, the definition of "educational institution" came to be inserted in Mega Exemption Notification No.25/2012 dated 20th June, 2012 vide clause (oa), which was in force from 11.07.2014 to 14.05.2016. Clause (oa) reads as under: "(oa) Educational institution means an institution providing services specified in clause (l) of section 66D of the Finance Act, 1994." 13.6 The definition of "educational institution" in Mega Exemption Notification No.25/2012 came to be further amended with effect from 14.05.2016, and reads thus: "(oa) "educational institution" means an institution providing services by way of: (i) Pre-school education and education up to higher secondary school or equivalent; (ii) Education as a part of a curriculum for obtaining a qualification recognized by any law for the time being in force; (iii) Education as a part of an approved vocational education course." 13.7 Thus, with effect from 14.05.2016, the definition of "educational institution" is brought i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ducational institution" envisages only those institutions which actually enroll students and impart education. In paragraph 7.6 of the show-cause notice, it has been stated that on examining the functions and duties of the above said Boards/University, it appears that these Boards/University are functioning as organisations which are entrusted with the work of creating more schools/colleges/institutes under their affiliation, to prepare the syllabus of education for such institutes, to conduct the academic tests and exams, to appoint examiners/supervisors for smooth conduct of examination, to declare the results of such examinations etc. On a broader aspect, these University/Boards work more like managerial organisations to plan the syllabus of education and conduct of examination for institutes affiliated under them. For this purpose, the Boards/University procure services of other service providers for such examination related and result processing services. According to the respondents, therefore, on reading the definition of 'educational institution' as given under the Finance Act, 1994 and comparing it with the functions and duties of the (i) GSEB, (ii) GTU, (iii) MSEB and (iv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anced Law Lexicon (P. Ramanatha Aiyar, 3rd Edn., 2005, Vol. 2) "education" is defined in very Wide terms. It is stated: "Education is the bringing up; the process of developing and training the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the instruction received at school, or college but the whole course of training moral, intellectual and physical; is not limited to the ordinary instruction of the child in the pursuits of literature. It also comprehends a proper attention to the moral and religious sentiments of the child. And it is sometimes used as synonymous with 'learning'." 83. In Sole Trustee, Lok Shikshana Trust v. CIT, the term "education" was held to mean: "the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. What education connotes is the process of training and developing the knowledge, skill, mind and character of students by formal schooling." 84. In "India Vision - 2020" published by the Planning Commission of India, it is stated (at p. 250):....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the basis of his performance in the examination. It is for this reason, the examination is considered as a common tool around which the entire education system revolves. - For the purpose of bringing the right to education under article 21 of the Constitution in conformity with articles 14 and 15, there must be no discrimination in the quality of education, which requires a common syllabus and a common curriculum. 13.19 The Orissa High Court, in Secondary Board of Education, Orissa v. Income Tax Officer, Ward "E", Cuttack, (supra), has held thus: "The Board of Secondary Education is not a University but it is undisputedly an educational institution. Xxxx The income and expenditure of the Board is controlled and the entire expenditure is to be directed towards development and expansion of educational purposes. Even if there is some surplus it is not appropriated by others but it remains part of the sinking fund to be devoted to the cause of education as and when necessary. This being the objective and there being various ways of control of income and expenditure, the Board of Secondary Education cannot be said to be existing for purposes of pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e sub-clause says education up to higher secondary school or equivalent, it goes without saying that it includes the examination leading to conferment of a certificate of having passed the higher secondary school or equivalent. Similarly when sub-clause (ii) says education as a part of the curriculum for obtaining a qualification recognized by any law for the time being in force, it is apparent that the legislature meant the entire process of preparation of curriculum to the holding of examination leading to obtaining of a qualification recognized by any law for the time being in force. If the contribution of the Boards/Universities is excluded, there would be no curriculum for obtaining a qualification nor would there be examination leading to conferment of such qualification. Clearly, therefore, it was not the intention of the legislature to exclude preparation of curriculum and holding of examinations from the ambit of clause (l) of section 66D of the Finance Act, 1994. As a necessary corollary, therefore, the School Boards and the University in question would clearly fall within the ambit of the expression "educational institution" as contemplated under clause (oa) of entry No.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dated 20.06.2012 as amended, the services in question were exempted and that the petitioner was eligible to refund of the service tax paid by it. The order-in-original dated 01.10.2014 was scrutinized by the audit section. Thereafter, revenue preferred an appeal before the Commissioner (Appeals) under section 85 of the Finance Act, 1994. Based upon the observations made by the Audit Section, in the memorandum of appeal it was submitted that the tender/work order/contract of hiring vehicles as agreed upon with the service provider to the service receivers is inclusive of all taxes including the service tax portion. However, while sanctioning the refund to the said service provider, the JAC in his argument has not considered these aspects. And since the contract terms refer to the term inclusive of all taxes, it is clear that the service tax was collected from the receivers. It is further stated in the memorandum of appeal that "Since the service provider was not required to pay Service Tax and the Government has no intention to hold on the amount, not due to it, the refund was admissible to the service provider, however, since the service tax portion was already recovered by the par....