TaxTMI 
TaxTMI 
2023 (11) TMI 1053
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....n Special Government Pleader Assisted by Mr.P.Haribabu Government Advocate, Mrs.R.Hemalatha Senior Standing Counsel For the R2 : Mr.V.Sundareswaran Senior Panel Counsel, Mr.Sai Srujan Tayi Senior Panel Counsel For the R4 : Mr.K.Shakespeare For the R4 : Mr.K.Shakespeare COMMON ORDER By this common order, all these four Writ Petitions are being disposed of. 2. The petitioners in W.P.Nos.11038 of 2022 & 5967 of 2023 are two colleges affiliated to Bharathiyar University, Coimbatore. These petitioners have challenged the impugned order dated 19.11.2020 passed by the first respondent the Authority for Clarification and Advance Ruling(ACAR) under Section 97 of CGST Act, 2017 r/w analogues provisions of the TNGST Act, 2017. 3.The petitioners in W.P.Nos.27092 & 24261 of 2022 are two Universities who have challenged the Show Cause Notice No.04/2022- GST(JC) dated 28.06.2022 and Order in Original No.01/2022 (GST) dated 05.05.2022 respectively. 4.The impugned ruling dated 19.11.2020 of the 1st respondent Authority for Clarification and Advance Ruling (ACAR) is challenged in W.P.Nos.11038 of 2022 & 5967 of 2023. The impugned ruling was obtained by Bharathiyar University und....
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....roposed in the show cause notice that preceded it was confirmed under Finance Act, 1994. The demand that was confirmed in Order-in-Original No.27/2019 (ST) dated 29.10.2019 was on the same activity undertaken by the Pondicherry University in connection with affiliation of colleges to it. By a separate order, which has been passed today, W.P.No.15333 of 2020 was dismissed with liberty to file a statutory appeal before the Appellate Authority. 9.The challenge to the impugned Show Cause Notice No.04/2022- GST(JC) dated 28.06.2022 issued by the respondent in W.P.No.27092 of 2022 is pre-mature and is therefore liable to be dismissed. It is not open for the petitioner to argue that the respondent in W.P.No.27092 of 2022 has no jurisdiction to issue the above Show Cause Notice on the ground that the petitioner is entitled to exemption under Notification No.12/2017- CT (Rate) dated 28.06.2017. It has to be examined by the respondent therein assuming the petitioner is entitled to such exemption under Notification No.12/2017-CT (Rate) dated 28.06.2017. 10.On the same principle, the challenge to Order in Original No.01/2022 (GST) dated 05.05.2022 bearing reference C.No.ADJ/GST/14/2021-C....
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....medy against the impugned order of the 1st respondent dated 19.11.2020. Hence, as persons bearing the tax, the petitioners have locus standi to file the present Writ Petition. 16.The Hon'ble Supreme Court followed its earlier views in G.M., Central Bank of India v. Commr., Municipal Corpn. for the City of Ahmedabad, [(1995) 4 SCC 696]. In G.M., Central Bank of India v. Commr., Municipal Corpn. for the City of Ahmedabad [(1995) 4 SCC 696], the Hon'ble Supreme Court had held that even a tenant, who has to bear incidence of tax can file a writ petition challenging the assessment against the Land Lord. In I.D.L. Chemicals Ltd., Vs. Union of India and Others, (1996) 5 SCC 373, the Hon'ble Supreme Court held as under:- "11. Our attention was drawn by Mr Salve to the judgment of this Court in Asstt. G.M., Central Bank of India v. Commr., Municipal Corpn. for the City of Ahmedabad [(1995) 4 SCC 696]. This Court held that a tenant is entitled to impugn in an appeal an increase in property tax because, under the relevant statute, the burden of such increase may be passed by the landlord to the tenant and also because there was, in the case with which it was concerned, an agreemen....
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....cisions, W.P.No.11038 of 2022 and W.P.No.5967 of 2023 are maintainable. However, there is no merits in these two Writ Petitions. These Writ Petitions are also liable to be dismissed. I shall refer to the submissions of these petitioners and give the reasons as to why these Writ Petitions are liable to be dismissed. 18.The learned counsel for the petitioners in W.P.No.11038 of 2022 & W.P.No.5967 of 2023 would submit that the petitioners are entitled for exemption under Entry 66 of Notification No.12/2017- CT(Rate) dated 28.06.2017 as amended by Notification No.2/2018- CT(Rate) dated 25.01.2018. 19.He further submitted that the amendment to Notification No.12/2017-CT(Rate) dated 28.06.2017 by Notification No.2/2018- CT(Rate) dated 25.01.2018 did not affect the right of exemption. On the contrary it clarified that the existing exemption was continued and has not been disturbed. 20.It is submitted that by Notification No.2/2018-CT(Rate) dated 25.01.2018, Notification No.12/2017-CT(Rate) dated 28.06.2017 was amended and the following changes were brought:- (a) the applicability of the exemption available under sub item (iv) in item (b) was extended to colleges; ....
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....ned order dated 19.11.2020 of the 1st respondent is contrary to Entry 66(b)(iv) of Notification No.12/2017 dated 28.06.2017, read with corresponding Entry in G.O.Ms.No.73 dated 29.06.2017. 28.It is submitted that the 1st respondent ought to have seen the expression "in relation to" found under Entry 66(b)(iv) of Notification No.12/2017 dated 28.06.2017 was an expression of wide import and referred to a subject matter for a service rendered by the Educational Institution to its students for examination or admission. 29.It is submitted that the 1st respondent ought to have construed the language of Entry 66(b)(iv) of Notification No.12/2017 dated 28.06.2017 on the basis of the plain language of the entry which was unambiguous and clear. 30.It is submitted that the 1st respondent having held that the service provided to the petitioners was a composite supply, ought to have extended the benefit of Entry 66(b)(iv) of Notification No.12/2017 dated 28.06.2017 and corresponding Entry in G.O.Ms.No.73 dated 29.06.2017. 31.It is submitted that Entry 66(b)(iv) of Notification No.12/2017 dated 28.06.2017 and corresponding Entry in G.O.Ms.No.73 dated 29.06.2017 extended the exemption....
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....d. 34.It is submitted that the petitioners in W.P.No.11038 of 2022 & W.P.No.5967 of 2023 are private educational institutions which have been affiliated to Bharathiar University, though whom the petitioners derived their rights by way of affiliation. 35.It is submitted that the composite supply of sale of applications for registration of course, inspection, etc., with the "principal supply of affiliation" provided by Bharathiar University to its constituent colleges, viz., self financing and management colleges for which they collect application form fee, application fees, application registration fee for each course, inspection fee for each course, affiliation fee for each course, affiliation fee for each additional section, initial affiliation fee to start an Institution, continuation of affiliation for each course, etc., as well as increase in intake for each course, permanent affiliation fee to the colleges, penal fee for receipt of late applications, etc., are not exempted in terms of Entry No.66 of Notification No.12/2017 - CT (Rate) dated 28.06.2017, as amended by Notification No.02/2018 - CT (Rate) dated 25.01.2018. 36.It is submitted that sub-items (i), (ii) & (ii....
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.... item (iv) in item (b) was extended to colleges; (b) there was additional grant of exemption by introduction of sub item (v) to item (b); (c) disqualification from exemption contemplated under sub clause (b) was confined to services contemplated by sub clause (i), (ii) and (iii). This did not affect the grant of exemption under sub clause (iv). (d) additional disqualification was introduced in respect of services falling under sub item (v) of item (b) to institutions providing services by way of pre-school education and education up to higher secondary school or equivalent or education as part of an approved vocational education course. There was no disqualification in respect of sub item (iv). 43.It is submitted that the petitioners bear the incidence of the tax levied on the 4th respondent. The 4th respondent insisted the petitioners reimburse the tax on the various fees and accordingly correspondence is marked before this Court. 44.It is submitted that the petitioners requesting the 4th respondent on 31.03.2022 to file a statutory appeal against the impugned order of the 1st respondent dated 19.11.2020 and the 4th respondent did not do so. The pe....
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....) of section 16 [and section 148] of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, and on being satisfied that it is necessary in the public interest so to do, hereby notifies that the central tax, on the intra- State supply of services of description as specified in column (3) of the Table below, falling under Chapter, Section or Heading of scheme of classification of services as specified in column (2), shall be levied at the rate as specified in the corresponding entry in column (4), subject to the conditions as specified in the corresponding entry in column (5) of the said Table :- TABLE Sl. No. Chapter, Section or Heading Description of Service Rate (percent.) Condition (1) (2) (3) (4) (5) 1 Chapter 99 All Services 30 Heading 9992 Education Services 9 [Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 as amended by Notifications No. 20/2017-C.T. (Rate), dated 22-8-2017; No. 24/2017-C.T. (Rate), dated 21-9-2017; No. 31/2017-C.T. (Rate), dated 13-10-2017; No. 46/2017-C.T. (Rate), dated 14-11-2017; No. ....
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.... Heading 9992 Services provided - a)by an educational institution to its students, faculty and staff; b)to an educational institution, by way of - i.transportation of students, faculty and staff; ii.catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory; iii.security or cleaning or housekeeping services performed in such educational institution; iv.services relating to admission to, or conduct of examination by, such institution; up to higher secondary: Provided that nothing contained in entry (b) shall apply to an "educational institution other than an institution providing services by way of pre-school education and education up to higher secondary school or equivalent. Nil Nil 54.Explanation 3 & 4 to Notification No.12/2017- Central Tax (Rate) dated 28.06.2017 reads as under:- "3.Explanation.- For the purposes of this notification,- (i) Reference to "Chapter", "Section" or "Heading", wherever they occur, unless the context otherwise requires, shall mean respectively as "Chapter, "Section" and "Heading" in the Scheme of Classification....
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....(Rate) dated 28.06.2017 at the time of inception read as under:- Entry 9 to Notification No.25/2012 - ST dated 20.06.2012 Entry 66 to Notification No.12/2017 -CT (Rate) dated 28.06.2017 Remarks Heading : 9992 Services provided - a.by an educational institution to its students, faculty and staff; Services provided - a.by an educational institution to its students, faculty and staff; Same b.to an educational institution, by way of - i. Transportation of students, faculty and staff; ii. Catering, including mid-day meals schedule sponsored by the Government; iii. Security or cleaning or house-keeping services performed in such educational institution; iv. Services relating to admission to, or conduct of examination by, such institutions; b.to an educational institution, by way of - i. Transportation of students, faculty and staff; ii. Catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory; iii. Security or cleaning or housekeeping services performed in such educational institution; iv. Services relating to admission to, ....
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....institution" in definition Clause 2(y) to the above notification would have included a college like petitioners in W.P.No.11038 of 2022 & W.P.No.5967 of 2023 who provide education as a part of a curriculum for obtaining a qualification recognized by any law for the time being in force, exemption in Entry (b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 was confined only to service provided to an institution providing services by way of pre-school education and education up to higher secondary school or equivalent. 63.Proviso to Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 further makes it abundantly clear that nothing contained in Entry (b) shall apply to an educational institution other than an institution:- (i) providing services by way of pre - school education; and (ii) education [up to higher secondary school or equivalent]. Thus, exemption was applicable only for supply of the services to specified recipient of services alone. 64.Thus, Entry (b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 applied only to services to educational institution by way of pre-school education and education ....
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....mely :- "(aa)by an educational institution by way of conduct of entrance examination against consideration in the form of entrance fee;" (ii)in item (b),- (A) in sub-item (iv), the words "upto higher secondary" shall be omitted; (B)after sub-item (iv), the following sub-item shall be inserted, namely :- "(v) supply of online educational journals or periodicals:"; (C)in the proviso, for the word, brackets and letter "entry (b)", the words, brackets and letters "subitems (i), (ii) and (iii) of item (b)" shall be substituted; (D)after the proviso, the following proviso shall be inserted, namely :- "Provided further that nothing contained in subitem (v) of item (b) shall apply to an institution providing services by way of,- i) pre-school education and education upto school or equivalent or ii) education as a part of an approved vocational education course." 71.By Notification No.2/2018-CT (Rate) dated 25.01.2018, expression "upto Higher Secondary" was deleted from Entry (b)(iv) to Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017. 72.Entry 66 to Notification No.12/2017-CT (Rate....
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....education up to higher secondary school or equivalent. Provided further that nothing contained in sub-item (v) of item (b) shall apply to an institution providing services by way of: i. pre-school education upto school or equivalent; or ii. education as a part of an approved vocational education course. * deleted by Notification No.2/2018-CT (Rate) dated 25.01.2018 * Bold portion in the last column were inserted / amended vide Notification No.2/2018-CT (Rate) dated 25.01.2018 73.By deleting the above expression "upto Higher Secondary", Entry No.66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 read similar to Entry 9 to Mega Exemption Notification No.25/2012-S.T dated 20.06.2012 as amended by Notification No.6/2014-ST (Rate) dated 11.07.2014 and Notification No.9/2016-ST (Rate) dated 01.03.2016. 74.Relevant portion of Entry 9 to Mega Exemption Notification No.25/2012-S.T dated 20.06.2012 for the purpose of this case as it stood after amendment by Notification No.9/2016-ST (Rate) dated 01.03.2016 and Entry 66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 as it amended by Notification No.2/2018-CT (Rate) dated 25.01.2018 are....
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....ion and education up to higher secondary school or equivalent. 76.Deletion of "up to Higher Secondary" to Entry 66 (b) (iv) to Notification No.12/2017-CT (Rate) dated 28.02.2017 by Notification No.2/2018-CT (Rate) dated 25.01.2018 however did not mean service provided to the constituent colleges such as petitioner in W.P.No.11038 of 2022 & W.P.No.5967 of 2023 by the Bharathiar University were exempted after amendment to Entry (b) (iv) to Entry No.66 to Notification No.12/2017-CT (Rate) dated 28.02.2017 vide Notification No.2/2018- CT (Rate) dated 25.01.2018. 77.There is no ambiguity in the language in Entry b (iv) to Entry 66 to Notification No.12/2017 - CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018. Entry b (iv) to Entry 66 to Notification No.12/2017 - CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018 is applicable only for services relating to examination or conduct of examination by petitioner colleges in W.P.No.11038 of 2022 & W.P.No.5967 of 2023 and not to work relating to affiliation. 78.The Hon'ble Supreme Court has repeatedly held that the operation of the notification has to be judged not by t....
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....e same in its literal sense and not to give a meaning which would cause violence to the provisions of the statute." 83.This view has been followed by the Hon'ble Supreme Court in several cases. Some of the decisions rendered by the Hon'ble Supreme Court in the context of taxing statute, wherein the above principle has been reiterated are enumerated as under:- i.Commissioner of Central Excise, Raipur vs. Sepco Electric Power Construction Corporation, 2022(062) GSTL 0385 SC; ii.Union of India vs. Mrgadarshi Chit Funds(P) Ltd., 2017(003)GSTL 0003 SC; iii.Commissioner of Cus.(Import), Mumbai vs.Dilip Kumar & Company, 2018(361)ELT 0372 SC; iv.Shabina Abraham vs. Collector of Central Excise and Customs, 2015(322)ELT 0373 SC; v.M.P.Steel Corporation vs. Commissioner of Central Excise, 2015(319)ELT 0373 SC; vi.Dujodwala Resins & Terpenes Ltd., 2014(311)ELT 0892 G.O.I.; vii.Sanket Food Products P.Ltd., 2014(307)ELT 0608 G.O.I; viii.Unique Phrmaceutical Laboratories, 2013(295)ELT 0129 G.O.I; ix.Ranbaxy Laboratories Ltd.vs. Union of India, 2011(273)ELT 0003 S.C.; x.Commissioner of C.Ex. Chandigarh vs.....