TaxTMI 
TaxTMI 
2024 (7) TMI 998
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....e' had filed refund claim of Rs. 5,74,070/- alongwith 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....
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....e applicable u/s 83 of the Finance Act, 1994), due to its collection being without any authority of law, hence time limitation of one year is not applicable to refund amount 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 ....
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....ices provided by the transport operator to the school are exempt by virtue of the exemption notification 4. In addition to the services mentioned in the definition of "auxiliary educational services", other examples would be hostels, housekeeping, security 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 ....
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.... refund." 4.3 Undisputedly appellant is a business associate of SOLCIL and is/ was registered for providing Business Auxiliary Services on which they were paying Service tax. 4.4 The minutes of the meeting (telecon) held on 2nd April 2013 between appellant and SOLCIL are 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 repr....
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.... 3. After initial scrutiny, vide the Department's letter C No.75-ST/Lord Buddha/Refund/Gr-V/20!4/5773,Dt. 11-11- 2014, the Claimants were requested to provide original invoices and documents evidencing that the Service Tax of which the refund has been claimed, had not been passed on to the service 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 ....
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.... on their service, in relation to which the refund is claimed, had not been passed on by them to the service recipient or to any other person. In view of the categorical statutory requirement in this regard, it does not appear possible to entertain the subject Refund Claim." In view of the specific averment made in the show cause notice with regards to non specification of the nature of services, agreement between the appellant and service recipient, and admissibility of exemption claimed we do not find any merits in the submissions made by the appellant that adjudicating authority or first appellate authority has travelled beyond the show cause notice. The decisions in the case of Manoj Kumar Pan and Alcast Engg. Pvt. Ltd. relied by the appellant are distinguishable and not applicable to the case in hand. 4.10 Both the authorities have concluded that the exemption claimed by the appellant is not admissible to them. Appellant has not come with clarity to specify the reason for claiming the exemption and refund even in the appeal filed before us. As observed earlier service tax is transaction based levy and should be determined only after examining the terms of agreement betwe....
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.... programs for counselors which will be mandatory on part of Lord Budha Advisor Academy to attend. میلا Zanguli. ..2.. ایید Was For Lord Budha Advisor Academy KOLKATA 031 2A we found Kolkata-west hetga e HYDERABAD 1st Floor, GS Towers, Himayathnagar Hyderabad-500029, Andra Pradesh, inaia a01 10 66865526 Guangzhou 351 Tianhe Road, 3016 Foreign Trade Building. Tianhe, Guangzhou, Guangdong, PR China. Tel: +86 1300 5193088 Proprietor Document 2 :2: 72 REMUNERATION Entitlement of Lord Budha Advisor Academy 7. SOLCIL shall pay Counseling Fee to Lord Budha Advisor Academy as mentioned below: without advertisement support: INCENTIVE SLAB FOR RECRUITMENT FOR 2013-14 Sl.No. University Counseling fee payable in INR 1 Dali University 1-5 students Rs.60000/st ident 6 - 25 students 26 & above Rs.70000/student Rs.90000/student 2 Luzhou Medical College** Rs.60000/student Rs.70000/student Rs.90000/student 3 Jinan University Rs.80000/student Rs.90000/student Rs.100000/student 4 Nanfang Medical University ** Medical School of Nancha....
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.... arrangement. 14. This MOM shall be valid for current academic year 2013 - 2014 only. 15. This association will not provide any right to Lord Budha Advisor Academy on the trade name Saraswati Online.Com India Limited or any goodwill attached to it. 16. That Lord Budha Advisor Academy shall not carry out any activity in the name of SOLCIL except for those it is authorized specifically by SOLCIL. 17. That Lord Budha Advisor Academy should not represent SOLCII. in any manner other than in the matter of counseling students for enrolment in various courses as may be authorized in the MOM. Sanguli. ......4.. Document 4 :4: 18. That in case Lord Budha Advisor Academy is disassociated during this academic year he shall not engage himself into any similar counseling activity during this academic year. This authorization is given on the basis of the material fact provided in the Business Associate Application Form and any information which is withheld or wrongly stated which could have altered the decision of the company will result in immediate cancellation of this authorization. This authorization is given on a non excl....