TaxTMI 
TaxTMI 
2024 (7) TMI 998
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....challans evidencing deposit of service tax, in Form R. 2.2 Appellant stated that they dealt with Education Services related to the admission of students in professional! colleges of China through M/s Saraswationline.com India Ltd. (SOLCIL), Kolkata and had been paying service tax on such services till they came to know that, as clarified vide Circular no. 172/7/2013-ST dated 19.09.2013, issued by CBEC, the said service was covered under exemption contained in the Notification no. 25/2012-ST dated 20.06.2012, and was not taxable. They surrendered their ST-2 dated 11.02.2007 on 23.09.2014. 2.3 On scrutiny of the refund claim certain discrepancies as follows were observed some amount being time barred, specific applicable provisions of the notification (supra) not mentioned, the applicable content of the said circular not specified. 2.4 A Show Cause Notice dated 11.12.2014 was issued to the appellant for rejection of the refund on the above grounds. 2.5 The refund claim was rejected by the adjudicating authority holding that the impugned service cannot be deemed to have been covered by the negative list in section 66D of Finance Act 1994 nor exempted by the said notification....
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....t paid under a mistake of law as held in case of SBW Udyog Ltd. [Appeals No. E/75345-75349 & 76661-76662/16 Final Order No. FO/77559-77565/201 7 dated 08.09.2017] Appellant has not passed on burden of amount paid as tax to SOLCIL. This has been accepted by Adjudicating authority in para) Appeal should be allowed 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Impugned order records the findings as follows: "6. The adjudicator has rejected the refund claim after recording his findings in the order that the appellant have failed to clarify the nature of their services as well as the arrangement with service recipient, so as to set out the applicability of the claimed exemption and the admissibility of the refund claim. The appellant has submitted that they are an, authorized Business Associate of M/s saraswationline.com to counsel the students for admission to International MBBS program and other courses as may be authorized by M/s saraswationine.com specifically. Thus they deal with Educational Services related to admissions of students in Professional Colleges through saraswati Online.Com India Ltd.....
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....curity services, canteen, etc. 8. Under the Service Tax statute, services specified under section 65(105) of the Finance Act 1994 are leviable to service tax when provided in taxable territory of India. In some cases, tax is also charged in India when received from outside India on reverse charge mechanism. Being one of the fundamental right to the people of India, the Government has not taxed the services of imparting education by the educational institutions. Further, vide notification no. 25/2012 (supra) the services provided to or by an educational institution in respect of education, by way of auxiliary education services have been exempted from service tax. From the above legal position, it is amply clear that not only the basic service of imparting education by the educational institution when provided in India is exempted but its auxiliary services have also been exempted by virtue of notification (supra). The taxability or non taxability of a specified service can be determined in the light of provisions of Taxing Statute which are applicable only on the services provided in the, taxable territory of India. I find that services provided by the appellant are in relation t....
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....e reproduced below : 4.5 from perusal of the above minutes of meeting which are in nature of agreement between the appellant and SOLCIL for providing the services it is quite evident appellant has provided the services to SOLCIL as business associate of SOLCIL and the services provided by the appellant are in relation to counseling the students seeking admission to various Chinese Universities. Appellant as per terms of this agreement do not provide any service to the students or to the Chinese Universities in relation to imparting education. It is now settled law that service tax is transaction based levy and nature of the service provided is to be determined on the basis of the of term of agreement between the service provider and service recipient. 4.6 We also take note of the invoices which were issued by the appellant to the SOLCIL for recovery of fees and charges from them. Sample Invoice is reproduced below : 4.7 We also reproduce below the copy of certificate dated 15.09.2014 issued by SOLCIL clearly stating that the invoices were raised by the appellant on them : 4.8 All the documents reproduced above except MOU are referred in the show cause notice. MOU has been prod....
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....ce recipient. In response, vide letter Dt. 19.11.2014, the Claimant; stated that they were filing the copy of invoices in original and the certificate from the buyer that the duty had not been passed to them, in original. The first document, on Perusal was found to be marked as "Bill", Dt. 2-3-2014, raised by the Claimants on M/s.SaraswatiOnline.com India Ltd., Kolkota, for Rs. 70,00,000/-. and the second paper was found to be a certificate Dt. 15-11-2014. marked "To Whom It May Concern", issued by the Manager, Finance Security and Administration of M/s. Saraswati Online. con India Ltd.. Bangalore, which read as under . "This is to confirm that invoices raised on us by M/s. Lord Buddha Advisor Academy for the Financial Year 2013-14 does not containing any element f service tax and we have not paid any service tax for the same." 4. As it appeared that the two papers filed by the Claimants above, did not serve the purpose because instead of the invoices as requested by the Department and mentioned in the Certificate from M/S.SarawatiOnline.com, a single "Bill" had been filed which did not conform to the requirements of Rule 4A(1) of the Service Tax Rules 1994. (as it did not reve....