TaxTMI 
TaxTMI 
2024 (4) TMI 905
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....aterial, teaching through a website allowing interaction with experts and other students, conducting of tests, etc. and for providing the courses, the Appellant raised an invoice on its customers which carried line items, namely, (i) online software lease; (ii) website space lease; (iii) online education; and (iv) university fund. Service tax was collected and paid only on the component of 'online education'. Thereafter, from April, 2009, the Appellant converted its business model to supply of CDs, DVDs, e-books, power-point presentations, etc., no interactive sessions were conducted. The course material was merely purchased by the customers/students. Further, courses were no longer conducted by the authorized training centres. Since only goods were supplied carried the course material, the Appellant stopped collecting and depositing service tax. 2.1 For the period 16.7.2001 to 6.10.2003, the Appellant was issued a show cause notice dated 28.4.2004 proposing a demand of service tax under the category of 'online information and data base access and/or retrieved service' ('OIDAR service') in respect of the real time courses provided by the Appellant. The dema....
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....ich was based on the statement of Mr. Manoj Kumar Satyawali who is not a technical expert to generate such figures from the server. The Department had contended that for the period 2007-08, the appellant has shown income of Rs. 96,61,68,240/- in the Balance Sheet, out of which Rs. 3,25,84,167/- was on account of other income. To arrive at the value of subscription fees of Rs.93,35,84073/-, the Department has deducted other income (Rs.3,25,84,167/-) from total income (Rs. 96,61,68,240/-). The Department has noted that the income retrieved from server is Rs.1,12,54,67,000/- and therefore contended that the Appellant has suppressed value of Rs. 19,18,82,927/-, which is detailed in the table below:- A. Total income as per balance sheet Rs. 96,61,68,240/- B. Other income shown in balance sheet Rs. 3,25,84,167/- C. Income on Account of Subscription (A-B) Rs. 93,35,84,073/- D. Income as retrieved from server Rs. 1,12,64,67,000/- E. Difference in income on account of subscription fee Rs. 19,18,82,927/- The Department has loaded Rs. 19,18,82,927/- for the period 2007-08 to the taxable value which has been confirmed by the Commissioner. In this regard, the Learned Counsel sta....
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....es Tax, Madhya Pradesh v. HM Esufali and Ors., AIR 1973 SC 2266 * Bobys' Restaurant v. Commissioner, Trade Tax, U.P., Lucknow, [2008] 17 VST 286 (All.) * King Bakeries v. Commissioner of Sales Tax, U.P., Lucknow, [1997] 104 STC 428 3.2 Learned Counsel further submitted that the Commissioner did not take into account all the invoices and agreements to discuss as to what activity was being undertaken by the Appellant. On the basis of a single invoice, which pertained to online education, confirmed the entire service tax demand. He relied on the decision in the case of Tata Engineering and Locomotive Co. Ltd. v. Assistant Commissioner of Commercial Taxes, Jamshedpur, [1970 (26) STC 354 (SC)]wherein the Supreme Court held that it is the duty of the assessing authority to examine the each transaction. Demand for the whole period cannot be assessed on the basis of representative transaction. However, in the SCN's as well as in the impugned Order-In-Original, only a single invoice was examined and demand was confirmed only on this basis. 3.3 For the period from 01.04.2007 to 30.06.2012, the Learned Counsel submitted that the appellant is not providing any commercial training....
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....packages to the subscribers. There is no element of training or coaching, to cover it under 'Commercial Training or Coaching Service'. 3.5. He further submitted that the Appellant is selling self- use packages which include books, CDs, DVDs etc, which is used by the subscribers/ customers to study on their own, without any coaching or training provided by the Appellant. This fact is further supported by the affidavits from the subscribers wherein it is certified that the subscribers are purchasing self-use education materials from the Appellant and the Appellant is not extending any kind of training or coaching to the subscribers. Therefore, the Appellant was not providing any coaching or training to its subscribers, the question of demanding service tax from the Appellant under 'Commercial Training or Coaching Service' will not arise. Hence, the demand of service tax under 'Commercial Training or Coaching Service' as confirmed by the impugned Order-In-Original is factually and legally not sustainable. 3.6. The Learned Counsel added that service tax is not payable as the transaction amounting to sale of self-use packages which include books, CDs, DVDs etc. to subs....
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....or the service under Commercial training or coaching. He found that Section 65(105)(zzc) of the Act defines the taxable service concerning commercial training or coaching. This section enunciates that the taxable service means any service provided or to be provided to any person by any training or coaching institute or establishment in relation to commercial training or coaching. This definition suggests that the taxable service should be in relation to commercial training or coaching for the levy of service tax. Clause 27 of Section 65 of the Act states, "Commercial training or coaching centre" means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than sports, with or without the issuance of a certificate, and includes coaching and tutorial classes, but does not include preschool, coaching and training centre, or any institute or establishment which issues any certificate or diploma or degree of any educational qualification recognised by law for the time being in force.Because of unambiguous wordings of the definitions after taking care of the exclusion clauses, he came to the ....
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.... the investigating team had obtained the figures after exercising the powerof search, and the same were retrieved from the appellant's computer by their employee concerned during search proceedings dated 25.03.2009 and further corroborated by his statements in terms of Section 14 of the Central Excise Act 1944. Shri Manoj Kumar Satyawadi looked after the data stored on the in-house server. He was authorised to retrieve data but had no authority to change the data. Thus, whatever data was retrieved from him was correct and untampered data. Hence, the reasons attributed by the appellant for the same being incorrect are not acceptable. The contention of the appellant were not tenable as while issuing SCN for the period F.Y. 2011-12, the Department had asked the appellant to submit the details of the services provided during such period vide letter and reminders dated 24.7.12, 27.7.2012, 27.8.2012 & 01.10.2012 which the appellant failed to submit. Hence, the department had no choice but to issue SCN for the period under Section 72 of Chapter V of the Finance Act, 1994. The facts of the case laws cited are not applicable in the instant case. 4.3 The Learned Special Counsel further ....
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....ching, the availability of two sets of balance sheets for the same years having different figures of income proved that the appellant had tampered and manipulated the figures of their taxable income only to suppress the taxable value. Hence, the Adjudicating Authority had correctly invoked the proviso of the provision of Section 73 of the Act. Consequently, no portion of the demand was hit by limitation, and the ratio of the case cited by the appellant is not applicable in the instant case. The contention of the appellant that no interest and no penalty is imposable was not acceptable as every person who is liable to pay the tax per the provisions of section 68 or rules made there under, and fails to credit the tax or any part thereof to the account of the Central Government within the period prescribed, is liable to interest as fixed by the Central Government. In the instant case, the appellant had failed to discharge their full liability. Hence the appellant is liable to pay interest on short/not paid service tax in terms of Section 75 of the Act. In respect of penalties, the appellant had contravened the various provisions of the Service Tax law, and had intentionally not disclo....
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....L-57-CESTAT- DEL] has followed the larger bench decision in the case of Great Lakes Institute of Management and others vs Commissioner of service tax, Chennai [2013-TIOL-1480-CESTAT-DEL-LB] wherein the reference was answered as follows: "25(i) the taxable service of "commercial training or coaching" occurs when any institute or establishment is engaged in the activity of imparting skill, knowledge of lessons on any subject or field (excluding sports), irrespective of whether such imparting of skill, knowledge of lessons is in respect of particular discipline or abroad spectrum of disciplines/academic areas; irrespective of the nomenclature or description of the institute or establishment, as a coaching or training centre or an educational institution; regardless of whether an institute or establishment is incorporated by all registered under any law; and irrespective of distinctions on the basis of curriculum, course content, teaching methodology, course duration or otherwise. Activities of imparting skills, knowledge, lessons on any subject or field or when provided by an entity, institution or establishment which is excluded by specific and legislated exclusionary clause would ....
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....oj Satyawadi, the demand notice has been issued. It is on record that the data sheets were obtained during the course of search from the in-house server of the appellant by the executive in charge of technical support and duly authenticated by the said employee. We also note that Shri Manoj in his statement has categorically stated that he was not authorised to make any alteration or amendment in the data management. No contrary evidence has been led by the appellant for us to ignore the data as retrieved and authenticated by an employee of the appellant. In view of the above, we are of the opinion that the argument that the data was incorrect is not acceptable. The apparent inconsistencies in the statement dated 9.10.2009 of Shri Rishi Sehdev, when confronted with the details as stated by Sh Manoj Satyawadi in his statement establishes the intent of the appellant to evade correct answers. It has also been established by the adjudicating authority that the authenticity and veracity of the Agreement dated 01.06.2003 entered by the appellant with M/s Dewsoft Nepal is doubtful in view of the fact that one of the witnesses to the said agreement is Sh Manoj Satyawadi whereas it is on re....
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.... of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." (emphasis supplied) 6.3 We further note that this decision was referred to by the Supreme Court in Anand Nishikawa Company Ltd. vs. Commissioner of Central Excise [2005 (188) E.L.T. 149 (S.C.)] and the observations are as follows: "26........... This Court in the case of Pushpam Pharmaceutical Company v. Collector of Central Excise, Bombay, while dealing with the meaning of the expression "suppression of facts" in proviso to Section 11A of the Act held that the term must be construed strictly. It does not mean any omission and the act must be deliberate and wilful to evade payment ....
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....r is qualified and able to use the same and gain from it, independently without any further support from the company and the partners. 6. That the subscriber may require additional coaching/monitoring/personal guidance on the subject, to acquire or gain understanding of the subject by an expert, as required by the industry levels, programme and its fee would be separate and in addition to this. The company under its distant/self use packages such as these does not offer the support. 7. That, in order to use the virtual package, o:r any of its part, the subscriber is required to have a PC with internet connection facilities, an internet connection, and access to internet by a browser, and knowledge/skill on how to use the scene. That the subscriber agrees to bear all the related cost in Peru using the package, including the cost of training himself, if necessary to learn the skills required for using the package. .." ..................... Limitation of support: that the subscriber understands and acknowledges that he is buying a self help/learn package, which comprises of self-use books, CDs, DVDs, and or e-books, audiobooks, et cetera without any monitoring or technical sup....