2009 (4) TMI 134

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....am. 2. Heard both the sides in the matter. 3. The appellants are imparting training to students for appearing in various competitive examinations. The services mainly "Commercial Training and Coaching" are liable to service tax with effect from 1-7-2003. They collected an amount of Rs. 81,74,000 from the students appearing for EAMCET for the year 2003 and the coaching duration was from April to July 2003. The appellants rendered training course to Group-I candidates sponsored by Social Welfare Department of Andhra Pradesh. According to the Department, there was some short payment of service tax as the appellants deducted an amount of Rs. 8,500 towards the Mess charges out of the gross amount received. In view of the above, the proceed....

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....efore a service provider should pay service tax for the value of taxable service. As regards the Mess Charges, the Commissioner has reasoned that the service tax is liable to be paid on the gross amount and there is no provision made in the said section for claiming any abatement. In view of this, he has upheld the order of the lower authority. The appellants are highly aggrieved over the impugned order of the Commissioner (Appeals). 5. The learned Advocate urged the following points:- (i) The learned Advocate invited our attention to rule 6(1) of Service Tax Rules, 1994 and also the amendment to the said rule with effect from 9-7-2004 by adding the following Explanation:- "Explanation.- For the removal of doubt it is hereby clarif....

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....Order-in-Original. It is well-settled position that in any show-cause notice issued on the basis of Audit objection, extended period cannot invoked. The following case laws were relied on:- (a) Vikram Ispat v. CCE 2007 (8) STR 559 (Trib.-Mum.). (b) Cambay Organics (P.) Ltd. v. CCE 2007 (217) ELT 586 (Trib.-Ahd.). (v) The show-cause notice does not have any evidence to show that the appellants had suppressed any information with an intention to evade payment of service tax. (vi) Section 78 can be invoked only where there is suppression. Since there is no evidence of suppression, penalty under section is not sustainable. (vii) It is also well-settled position that two penalties under sections 76 and 78 cannot be simultaneous....

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....r taxable service shall include any amount received towards the taxable service before, during or after provision of such services." For the first time only with effect from 13-5-2005, there is provision for including the amount received even prior to rendering of service in the gross amount for the purpose of service tax. In the present case, the period is prior to even 1-7-2003. In other words, it is prior to the amendment of section 67 with effect from 13-5-2005. The said amendment cannot be applied retrospectively. Even the Board's Circular is dated 5-11-2003 which is after the impugned period in the present appeal. In any case, the said Circular had been issued even prior to the amendment of section 67. Without going into the mainta....