Custom, Excise & Service Tax Tribunal
Sivananda Yoga Vedanta Dhanwanthari ... vs Trivandrum on 25 March, 2025
ST/20533/2015 &ST/ 20093/2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
BANGALORE
REGIONAL BENCH - COURT NO. 1
Service Tax Miscellaneous Application No. 20482 of 2024
Service Tax Appeal No. 20533 of 2015
(Arising out of Order-in-Original No. TVM-EXCUS-000-COM-33-14-15
DT dated 10.12.2014 passed by the Commissioner of Central Excise
and Customs, Thiruvananthapuram.)
Sivananda Yoga Vedanta
Dhanwanthari Ashram, Appellant(s)
Neyyar Dam P.O.,
Thiruvananthapuram - 695 572.
VERSUS
Commissioner of Central
Excise and Customs
Thiruvananthapuram
Commissionerate, Respondent(s)
T.C. No. 26/34, I.C.E. Bhavan, Press Club Road, Thiruvananthapuram - 695 001.
With Service Tax Miscellaneous Application No. 20483 of 2024 Service Tax Appeal No. 20093 of 2016 (Arising out of Order-in-Original No. TVM-EXCUS-000-COM-32-15-16 DT dated 27.10.2015 passed by the Commissioner of Central Excise and Customs, Thiruvananthapuram.) Sivananda Yoga Vedanta Dhanwanthari Ashram, Appellant(s) Neyyar Dam P.O., Thiruvananthapuram - 695 572.
VERSUS
Commissioner of Central
Excise and Customs
Thiruvananthapuram
Commisionerate, Respondent(s)
T.C. No. 26/34, I.C.E. Bhavan,
Press Club Road,
Thiruvananthapuram - 695 001.
APPEARANCE:
Mr. Abrahim Markos, Advocate for the Appellant Mr. P.Saravana Perumal, Addl. Commissioner(AR) for the Respondent Page 1 of 20 ST/20533/2015 &ST/ 20093/2016 CORAM: HON'BLE DR. D.M. MISRA, MEMBER (JUDICIAL) HON'BLE MRS R BHAGYA DEVI, MEMBER (TECHNICAL) Final Order No. 20437 - 20438 /2025 DATE OF HEARING: 26.09.2024 DATE OF DECISION: 25.03.2025 PER : DR. D.M. MISRA These two appeals are filed against respective Orders-in- Original passed by the Commissioner of Central Excise and Customs, Thiruvananthapuram. Since common issues involved, the appeals are taken up together for hearing and disposal.
2. On the basis of intelligence that the appellant is a trust engaged in imparting training to general public at their ashrams in Neyyardam, Madurai and Uttarakashi, both residential and non-residential yoga courses, ayurvedic massage, panchakarma programs etc. which attract service tax but failed to discharge the same, investigation was initiated. Later, on completion of investigation, a show-cause notice was issued to the appellant on 22.04.2014 (Appeal No.ST/20533/2015) invoking extended period of limitation for recovery of service tax amounting to Rs.2,84,37,891/- for providing taxable services viz. health and fitness and Rs.67,05,560/- for providing 'commercial training and coaching services' during the period October 2008 to March 2013, with interest and penalty. On adjudication, the said demands were confirmed with interest and penalty. Another show-cause notice dated 30.01.2015 was issued covering the period April 2013 to March 2014 for recovery of service tax of Rs.72,33,467/- and Rs.86,048/- on yoga services and for receipt of legal services respectively along with interest and penalty. On adjudication, the said demand was also confirmed with interest and penalty. Hence, these two appeals.
Page 2 of 20ST/20533/2015 &ST/ 20093/2016 3.1. At the outset, the learned advocate for the appellant has submitted that the issues involved in the present appeals are whether the activities carried out by the appellant viz. yoga / imparting training in yoga are liable to be classified under the category of services 'health club and fitness centre' under Section 65(105)(zw) and 'commercial training or coaching services' under Section 65(105)(zzc) of the Finance Act, 1994. He has submitted that the activities of yoga / imparting training in yoga do not come under the said taxable entries for the period from October 2008 to June 2012. For the period thereafter i.e. from 01.07.2012 to 31.03.2014, the appellant cannot be brought within the purview of service tax as their activities have been exempted under Entry 4 of Notification No.25/2012-ST. He has submitted that the appellant is a charitable trust registered under Section 12AA of the Income Tax Act, 1961 and for the period prior to 01.07.2012 by Circular No.B.11/1/2002-TRU dated 01.08.2002, it is clarified that institutes imparting diploma courses in yoga do not fall under the category of health club and fitness centre and accordingly not liable to pay service tax. Thus, for the period October 2008 to June 2012, the activity carried out by the appellant are not liable to levy of service tax in the light of the said circular. For the period from July 2012 to March 2014, the appellant qualifies for the exemption under both the Entries 2 and 4 of the Notification No.25/2012-ST dated 20.06.2012.
3.2. He has further submitted that the activities carried out by the appellant are charitable in nature and as per the definition of 'charitable activities', at para 2(k) of the said notification, the activity of yoga is an exempted 'service'. Further, by Notification No.20/2015-ST dated 21.01.2015, yoga has been specifically included in para 2(k) of the notification No.25/2012-ST. Thus, the amendment would necessarily be applicable retrospectively Page 3 of 20 ST/20533/2015 &ST/ 20093/2016 being clarificatory in nature. Further, he has submitted that the Central Government vide Notification No.42/2016-ST dated 26.09.2016 issued under Section 11C of the Central Excise Act, 1944 read with Section 83 of the Finance Act applicable for the period from 01.07.2012 to 20.10.2015 exempting service tax on services by way of advancement of yoga provided by entities registered under Section 12AA of the Income Tax Act. Further he has submitted that it is held by the Hon'ble Andhra Pradesh High Court in the case of Manthena Satyanara Raju Charitable Trust Vs. UOI [2017(3) GSTL 213 (AP)] that a system of medicine which focused mainly on healthy living and an exemption notification cannot be denied on the misconception that clinical establishment was one that would treat people after they fall ill and not the one which will prevent people from falling ill. Further, he has submitted that the subsequent Order-in- original passed confirming demand on the same line, when challenged before the learned Commissioner(Appeals) vide Order-in-Appeal dated 13.05.2022, the demands were dropped following the exemption Notification No.25/2012-ST as well as Notification No.42/2016-ST dated 26.09.2016.
3.3. Further, the learned advocate has submitted that the demand confirmed invoking extended period cannot be sustained as the show-cause notice dated 22.04.2014 for the period October 2008 to March 2013 is barred by limitation as there was no suppression or wilfull miststatement of fact. In support, they have referred the following judgments:-
i. CCE Vs. Chemphar Drugs & Linaments [1989(40) ELT 276 SC] ii. Pushpam Pharmaceuticals Vs. CCE [1995(78) ELT 401 (SC)] iii. Continental Foundation Vs. CCE, Chendigarh [2007(216) ELT 177 (SC)] iv. Uniworth Textiles [2013(288) ELT 161(SC)] 3.4. The appellant has further submitted that the computation of demand is not correct as the donations received from peoples Page 4 of 20 ST/20533/2015 &ST/ 20093/2016 who visited ashrams, massage receipts based on medical treatment, contribution from their Head Office to other ashrams and centres of the ashram for proper functioning, insurance claims for the Chennai Unit and also the amount shown under Haiti Earthquake Donation ought to have been excluded from the taxable value; these receipts have not been considered by the Department while confirming the demand. However, he fairly submitted that all the details were not submitted before the adjudicating authority but filed before this Tribunal through miscellaneous applications.
4.1. Per contra, learned AR for the Revenue has submitted that a case was booked against the appellant in the year 2013 for not taking registration and not paying appropriate service tax on various taxable services. He has submitted that the health and fitness services was defined for the period upto June 2012 as health and fitness service means service for physical well being such as sauna and steam bath, Turkish bath, solanum spas, reducing or slimming salons, gymnasium, yoga, meditation massage (excluding therapeutic massage) or any other like service. The learned adjudicating authority held that the appellant had accepted that these activities were of for physical wellbeing of the participants. Further, it is held that even if the ashram is promoting spirituality and religion, the activities carried out by them still be classified under the health and fitness service. The learned adjudicating authority referred to the circular issued by the Board dated 01.08.2002 and the principle laid down by the Principal Bench of this Tribunal in the case of Patanjali Yogpeeth Trust Vs. CCE, Meerut [2013(31) STR 137 (Tri. Del.)] in coming to the said conclusion that their activities squarely fall under the category of 'health and fitness service'.Page 5 of 20
ST/20533/2015 &ST/ 20093/2016 4.2. Further, supporting the order of the learned adjudicating authority, he has submitted that the appellant has also provided 'commercial training and coaching services' and the same was not exempted from service tax by issuance of any service tax notification. The appellant were receiving fees from the trainees for imparting these courses. He has submitted that the circular referred to by the appellant was with regard to the position prior to introduction of 'commercial training or coaching service' under Service Tax law and that the amendment in Finance Act, 2010 was given effect retrospectively. He has submitted that if services were provided for a consideration, then even if there was no profit motive, the activity would still be taxable. For the period after introduction of negative list, the learned adjudicating authority observed that since the activities carried out by the appellant are not reflected in the negative list, the same are taxable. The exemption claimed by the appellant under Notification No.25/2012 dated 20.06.2012 also not accepted by the learned Commissioner while observing that the appellant had not produced any evidence to the effect that their activities were in the nature of diagnostic, investigative or therapeutic treatment and consequently held to be not eligible for the said exemption. On the claim of providing charitable services by the appellant, he has submitted that the learned adjudicating authority has categorically held that only those activities which were specified in the said notification could be covered under its scope; hence, in absence of any evidence of charitable activities, the benefit cannot be extended to the appellant. Further, it is held that even if promotion of religion or spirituality was one of their activities since the same was not their main activity and yoga being the main activity; hence they cannot claim exemption under the said head. On the issue of receipt of legal charges, he has submitted that the appellant has not disputed nor challenged it before the adjudicating authority; hence, demands were confirmed. Further, the learned AR has Page 6 of 20 ST/20533/2015 &ST/ 20093/2016 submitted that the issue recently stands decided in favour of the Revenue by the Tribunal in the case of Patanjali Yogpeeth Trust Vs. CCE, Meerut-1 [2023(10) TMI 594 - CESTAT Allahabad], which was upheld by the Hon'ble Supreme Court as reported in 2024(388) ELT 675 (SC). Further, he has submitted that since the appellant had suppressed the said facts from the knowledge of the Department, hence as held in Patanjali Yogpeeth's case, demand has been confirmed invoking extended period and penalty imposed by the adjudicating authority.
5. Heard both sides and perused the records.
6. The main issues involved in the present appeals for determination are whether:
i. the activities of the appellant providing services in the nature of yoga and yoga classes during the period October 2008 to June 2012 classifiable under the taxable category of "health club and fitness centre service" and Teacher Training Course (TTC) and Advanced Teacher Training Courses(ATTC) provided by the appellant during the same period attract service tax under the category of "Commercial Training or Coaching Services";
ii. the said Yoga service and TTC and ATTC on Yoga provided for the period 01.07.2012 to 31.03.2014 be considered as 'services' under the Negative List regime and not exempted under Notification No.25/2012-ST dated 20.06.2012; and iii. extended period of limitation is invocable in appeal No.ST/20533/2015 and penalty is imposable.
7. Undisputed facts of the case are that during the relevant period, the appellant had been conducting various short / long term programmes in the discipline of yoga and also providing training programmes on the said discipline to various interested Page 7 of 20 ST/20533/2015 &ST/ 20093/2016 candidates for which they collected fees from the individuals for providing the said services of the nature relating to yoga. The Department, on scrutiny of the financial records of the appellant maintained at their Head Office, alleged that they have not discharged service tax on short term and long term programmes conducted on yoga as it satisfies the taxable category of "health and fitness centre service" and also failed to discharge service tax in carrying out programmes of teaching in yoga viz. TTC and ATCC, Vastu Shastra course to the trainees / candidates under the taxable category of "Commercial Training or Coaching Services" for the period upto 30.06.2012. Thereafter w.e.f. 01.07.2012 after introduction of the Negative List regime, the appellant even though continued to render these services, failed to discharge the service tax on the same.
8. The main thrust of the argument of the appellant resisting the demand of service tax by the Department on both counts is that all their activities are charitable, spiritual, for wellbeing of the participants and for protection of the traditional Indian culture. The primary aim is that of advancing Gurukul system for which they are engaged in imparting yoga to all those who seek it and also carried out training courses to train persons who could later teach, protect yoga and spread among the general masses. Therefore, the said activities undertaken by the appellant claimed to have fallen outside the scope of the taxable entry of 'health and fitness service'. In support of their argument, the learned advocate for the appellant referred to the Circular issued by the Board bearing No.B.11/1/2002-TRU dated 01.08.2002.
9. The learned Commissioner referring to the definition of 'health and fitness service' observed that the said definition is very specific and exhaustive and use of the term "means" indicates that it covers services of physical wellbeing, which the Page 8 of 20 ST/20533/2015 &ST/ 20093/2016 appellant had also admitted that yoga imparted by them also for the physical wellbeing of the participants. Further, rejecting the contention of the appellant that promotion of yoga with spirituality at heart and religion side by side with the practice of yoga would not fall under the said definition, the learned Commissioner held that in absence of any distinction embedded into the said definition, the term has to be understood in its normal sense. Thus, referring to the said definition, he has concluded that since the term yoga specifically mentioned under the term "means" of the definition, the activities carried out by them would cover under the definition of 'health club and fitness centre service'. He has recorded his reasonings as below:-
35. The service so provided in relation to health and fitness would be taxable when provided or to be provided to any person by a health club and fitness centre. The term health club and fitness centre' has been defined under Section 65(52) of the Act as 'any establishment, including a hotel or resort, providing health and fitness service'. Here also the situation is very clear. It covers any establishment including a hotel or a resort providing the health and fitness service. The Ashram being a trust is covered under the above definition and I find that the services of health and fitness provided by them are liable for service tax. I may also add here that when the phrases have been defined in the statute, there is no scope to add or delete words while interpreting the same. Therefore, the contention of the Ashram that they are outside the purview of service tax is not sustainable.
36. Further, the Ministry of Finance vide their Instructions F.No:B.11/1/2002 TRU dated 01.08.2002 has also clarified that The services which fall under this category might be for weight reduction and slimming, physical fitness exercise, gyms, aerobics, yoga, meditation, reiki, sauna and steam bath, Turkish bath, sun bath and massage for general well being. However, therapeutic massage does not come in the ambit of A taxable service...... Ayurvedic massages, acupressure therapy, etc given by qualified professionals under medical supervision for curing diseases/disorders will come under the category of therapeutic massages. If the massage is performed without any medical supervision or advice, but for the general physical well being of a person, such massages do not come under the purview Page 9 of 20 ST/20533/2015 &ST/ 20093/2016 of therapeutic massages and they would be liable to service tax'. This illustrates the intention of the legislature or the government with regard to the taxability or otherwise of certain activities which could otherwise be under doubt. From the above instructions/clarifications, it is very clear that those services/activities which provide for the general well being of the participants will fall under the category of health and fitness services and if done by an establishment including the ones added thereon would be taxable. In this case I have noticed that there.js no cogent evidence or any argument on the part of the Ashram that the Yoga professed or practiced at the Ashram were in relation to curing of any ailment or disorder of the participants. They also do not have any argument that the programmes were carried out under the supervision of medical professionals or paramedics.
10. We find that recently, this Tribunal in the case of Patanjali Yogpeeth Trust Vs. CCE, Meerut-I [2024 (17) TMI 318 (Tri. Ahmd.)], in more or less similar circumstances where the appellant therein was also engaged in the activities of provided services relating to health and fitness by way of teaching yoga and meditation and failed to discharge service tax, analysing the definition and referring to an earlier judgment of Delhi Bench of this Tribunal, reported as Patanjali Yogpeeth Trust Vs. CCE, Meerut-I [2013(31) STR 137 (Tri. Del.)] which is also relied upon by the learned Commissioner in the impugned order. It is observed by the Tribunal:-
4.4 We do not have any reasons before us to differ with the findings recorded by the bench earlier. In our view the appellant was engaged in providing the services that were classifiable under the taxable category of services provided by "health club and fitness centre", as defined under Section 65 (52) to any person. The phrase "Yoga"
and "Meditation" have been specifically mentioned in the definition of 'health and fitness service' as defined under Section 65 (51) of the Finance Act, 1994. The claim of the appellant that they are providing treatment for specific ailments being suffered by the person is not supported by any positive evidence. Instructions on 'Yoga' and "Meditation" in these camps are not imparted to individual but to the entire gathering together. No prescriptions are made for any individual in writing, diagnosing and treating the specific ailment/ complaint Page 10 of 20 ST/20533/2015 &ST/ 20093/2016 of any individual. In para 4.6 to 4.16 of the impugned order, Commissioner has thread bare discussed this aspect and we are in complete agreement with the findings recorded.
The said judgment of the Tribunal has been upheld by the Hon'ble Supreme Court reported as Patanjali Yogpeeth Trust Vs. CCE, Meerut-I [2024(388) ELT 675 (SC)].
11. Under these circumstances, we do not fine any reason not to follow the said judgment of the Tribunal which has been upheld by the Hon'ble Supreme Court. Consequently, we agree with the conclusion of the learned Commissioner that the services which are in the nature of yoga, rendered by the appellant, fall under the taxable category of "health and fitness service" during the period October 2008 to June 2012.
12. On the issue of leviability of service tax on TTC and ATTC and also Vastu Shastra, analysing the relevant provisions of taxable service "Commercial Training or Coaching Centre" as defined under Section 65(105)(zze) and the retrospective amendment carried out in the year 2010, the learned Commissioner recorded as follows:-
39. Coming to the levy of service tax on the Teacher Training Courses (TTC) and Advanced Teacher Training Courses (ATTC) and also on Vasthusasthra it was contended that the said activity cannot be classified under Commercial Training or Coaching Services in view of the fact that the department at the first instance tried to classify them under health and fitness centre.
They also relied upon the clarification issued by the Ministry of Finance vide instructions dated 01.08.2002 above which stated that "Certain recognized institutes impart diploma courses in yoga. A point has been raised as to whether service tax is leviable an such institutes. It is clarified that such institutes and research centre do not fall in the category of health club and fitness centre and accordingly would not be liable to service tax." The above clarification remains to be correct in so far as it relates to the taxability or otherwise of the activity of teacher training or coaching imparted in yoga etc under Page 11 of 20 ST/20533/2015 &ST/ 20093/2016 the category of Health and Fitness Services and not under Commercial Training or Coaching Services. Here it would be interesting to note that the service of Commercial Training or Coaching Services' was brought into the tax net with effect from 01.07.2003 as per notification No:07/2003 dated 20.06.2003. 1, therefore, hold that the Ashram cannot seek any relief on the basis of the above clarification on two counts, one that the clarification related to a period prior to the introduction of the levy on Commercial Training or Coaching Services, and secondly it does not address the context specifically i.e; the taxability of teacher training courses under the category of commercial training or coaching services.
40. The relevant provisions of the Act are as under:
➢ Section 65(26)- Commercial training or coaching means any training or coaching provided by a commercial training or coaching centre.
➢ Section 65(27)- 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 the sports, with or without issuance of a certificate and includes coaching or tutorial classes...
➢ Section 65(105)(zzc) "taxable service" means any service provided or to be provided to any person by a commercial training or coaching centre in relation to commercial training or coaching.
41. An explanation was added to the Section 65(105)(zzc) through Finance Act, 2010 giving effect retrospectively to the said amendment right from its inception. The effect of the said amendment is that service tax shall be levied when provided for a consideration even if the provider do not have profit motive. In short it brings into its fold all charitable trusts, societies, institutes etc. providing commercial training or coaching services. Further, the Board has also issued clarification vide Circular No:107/01/2009 ST dated 28.01.2009 regarding the term 'Commercial"
used in the definition. It was clarified that the definition of the service is very specific and that there is no mention that such institute must have commercial (profit) intent or motive and, therefore, there is no reason to give a restricted meaning to the phrase. This has further been emphasized vide Ministry's DOF No:
334/1/2010 TRU dated 26.02.2010 clarifying the legislative intent in inserting the Explanation to the definition to taxable services as contained in Section 65(105)(zzc). Therefore, the contention of the Ashram that their activities are not commercial in nature and Page 12 of 20 ST/20533/2015 &ST/ 20093/2016 that they are not a commercial entity do not have any bearing in the context of the levy of service tax under the category of commercial training or coaching services as per the definitions contained in the statute and also in view of the specific clarification issued by the Board.
42. Apart from their claim that they are not liable to levy of service tax under the category of commercial training or coaching services in view of the clarification/instruction dated 01.08.2002 of the Board, which I found to be irrelevant in the context of the assessee for the reasons stated supra, they have advanced the plea that the courses conducted by them are recognized by the Government and that visas are issued to foreigners visiting the Ashram for the spiritual programme. On verification of the document produced by the Ashram along with the reply to the SCN it is noticed that one of them has been issued by the Home department of the Govt. of Kerala and the other one was issued by the Ministry of Home Affairs, Government of India which recognizes the Ashram for grant of student visas. The said permissions cannot be construed as a recognition of the programmes/courses conducted by them, as per the law in force in the matter. Therefore, I am of the opinion that the argument. of the Ashram that the courses offered/conducted therein are recognized by law for the time being in force is not sustainable. The said courses are also not exempt specifically by way of an exemption notification. Therefore, I do not accept the said averments of the Ashram and hold that the activities undertaken by them are taxable under commercial training or coaching services. The charges received/collected by them from the trainees is the consideration received by them for imparting such training and therefore, forms the value for the purpose of payment of service tax as envisaged under Section 67 of the Act read with the relevant Rules made in this regard applicable during the relevant period. I hold that the assessee is liable to pay service tax at the appropriate rate on the consideration received by them from the trainees during the said period.
13. We do not find any valid reason not to accept the said reasoning of the Commissioner as no contrary evidence has been placed on record to buttress their claim that the courses viz. TTC, ATTC and Vastu Shastra offered by the appellant do not fall under the category of 'Commercial Training or Coaching Centre Service'.
Page 13 of 20ST/20533/2015 &ST/ 20093/2016
14. On the issue of levy of service tax under the Negative List w.e.f. 01.07.2012, we find that the learned Commissioner examining the scope of the Notification No.25/2012-ST particularly definitions of 'clinical establishment' and 'charitable activities' as defined under 2(j) and 2(k) in the said notification and scrutinising its scope and applicability to authorised medical practitioner or paramedics at Clause (4) by an entity registered under Section 12AA of the Income Tax Act, 1961, by pursuing charitable activities and provided under the definition contained at clause 2(k)(ii) for advancement of religion or spirituality, held that the claim of the appellant cannot be considered either under the list of services particularly Clauses (2) and (4) as claimed. The learned advocate on the other hand claimed by virtue of Notification No.20/2015-ST dated 21.01.2015 and 11C Notification No.42/2016-ST dated 26.06.2016, the services of Yoga has been exempted from service tax w.e.f. 01.07.2012.
15. We find that subsequent to the impugned order, a Notification No.42/2016-ST dated 26.09.2016 was issued which reads as follows:-
Exemption to Service Tax on services by way of advancement of Yoga provided by entities registered under Section 12AA of Income Tax Act for the period from 1-7-2012 to 20-10-2015 Whereas, the Central Government is satisfied that in the period commencing on and from the first day of July, 2012 and ending with the 20th day of October, 2015 (hereinafter referred to as the said period) according to a practice that was generally prevalent, there was non-levy of service tax on the services by way of advancement of Yoga provided by entities registered under section 12AA of Income-tax Act, 1961 (43 of 1961) and this service was liable to service tax, in the said period, which was not being paid according to the said practice.
Now, therefore, in exercise of the powers conferred by section 11C of the Central Excise Act, 1944 (1 of 1944), read with section 83 of the Finance Act, 1994 (32 Page 14 of 20 ST/20533/2015 &ST/ 20093/2016 of 1994), the Central Government hereby directs that the service tax payable under section 66B of the Finance Act, 1994, on the service by way of advancement of Yoga provided by entities registered under section 12AA of Income-tax Act, 1961 (43 of 1961) in the said period, but for the said practice, shall not be required to be paid.
[Notification No. 42/2016-S.T., dated 26-9-2016]
16. Learned advocate for the appellant has submitted that the learned Commissioner in the impugned order has not disputed that the appellant are a charitable trust registered under Section 12AA of the Income Tax Act, 1961; hence, the services of the yoga provided by them covered under the said Notification which has been given effect from 01.07.2012 to 20.10.2015, the demand confirmed therefore not sustainable. We find force in the said argument of the learned advocate for the appellant; however, to ascertain the applicability of the said notification, the matter needs to be remanded to the adjudicating authority, since the notification was issued after the impugned order was passed and it was not before the learned Commissioner for consideration of its applicability to the present case.
17. This Tribunal in Patanjali Yogpeeth Trust's case, the facts of which is more or less similar to the present one, upheld the invocation of extended period of limitation after analysing and following the principles of law on the subject. It is observed as:
4.14 In the case of ICICI Econet Internet & Technology Fund [2021 (51) G.S.T.L. 36 (Tri. - Bang.)], Bangalore bench has observed as follows:
46. We find that the appellants have argued that this is a matter of interpretation and all the information being in public domain, suppression of any material fact with intent to evade payment of duty cannot be alleged. The appellants have relied upon this Bench's decision in the case of Gateway Hotels, 2020 (37) G.S.T.L. 210 (Tri. - Bang.). We find that in that case, the fact was that the appellants have been filing the returns regularly and there was a confusion regarding the correct position of law during the relevant time.
The facts of the case are different. It cannot be argued that Page 15 of 20 ST/20533/2015 &ST/ 20093/2016 suppression cannot be alleged as the information is in the public domain. Information being in the public domain is not of any consequence. The information should be in the knowledge or made available to the authorities concerned who need to take a certain decision depending on such information. It is not the case of the appellants that they have been paying applicable service tax on getting registered and have been submitting regular returns to service tax authorities. It is not the case of the appellants that the material information available in the form of various contracts/agreements and balance sheets/ledgers have been submitted to the Department suo motu by the appellants. It is only after investigation has been initiated, the necessary documents were submitted. Thus, the information available in the public domain is of no avail. We find that Learned Adjudicating Authority has rightly relied upon in the case of CCE, Calicut v. Steel Industries Kerala Ltd., 2005 (188) E.L.T. 33 (Tri. - Bang.) wherein it is held at Para 3 as under :
"3. We find that in the case of Maruti Udyog Ltd. v. CCE, New Delhi, 2001 (134) E.L.T. 269, the Tribunal has upheld the invocation of the extended period of limitation when the assessees did not declare waste and scrap of iron and steel and aluminium and availment of credit therein either in their classification list or modvat declaration or in the statutory records. The Tribunal held that the theory of universal knowledge cannot be attributed to the department in the absence of any declaration."
4.15 In case of Air India Ltd. [2017 (3) G.S.T.L. 374 (Tri. - Del)], Delhi Bench has held as follows:
"12. Next, we consider the ground of limitation raised by AIL. The contention of AIL is that no allegation of suppression can be fastened against them since the activities of AIL were within the knowledge of the department during the relevant period. Specifically the appellant had cited a letter dated 7-3-2006 written to the Joint Director of Service Tax to inform the various heads under which it was raising bills on AASL. Further, it has been contended that AIL had not paid service tax under the bona fide belief that it is not payable since AIL had not received payment from AASL. In the annual report 2003-04, it is mentioned "Noncharging of service tax on certain services". This implies that even where service tax has been collected the same was not deposited pending registration. It has also been recorded by the statutory auditors that service tax was payable on the services rendered by AIL to AASL. However, on the pretext that consideration has not been received (despite realization of the same from sale of tickets conducted on behalf of AASL), AIL has not discharged the service tax liability. In the light of the observations of the statutory auditors, We are not convinced with the argument taken by appellants that service Page 16 of 20 ST/20533/2015 &ST/ 20093/2016 tax was not paid on the basis of bona fide belief that service tax was not payable. Consequently, we are concluding that Revenue is entitled to invoke the extended period of limitation in this case."
4.16 In case of TATA Steel Ltd. [2016 (41) S.T.R. 689 (Tri. - Mumbai)], Mumbai bench held as follows:
"48. The invocation of the extended period of limitation is a mixed question of facts and law and is mainly based upon the facts of individual cases. During the relevant period the appellant had not taken registration under the Banking and Financial Services and hence they did not file the ST-3 returns. In the absence of registration and the non-filing of the return, the material fact about the receipt of the above mentioned services was completely suppressed from the department. It is noted that, in the present case, the demand being confirmed is for the period 1-4-2006 to 31-3-2007. Even in this period, a demand of ` 69,132/- is for the period 1-4-2006 to 30-9-2006 and the remaining demand is for the period 1-10-2006 to 31-3- 2007. I find from the chronological sequence of events submitted by the appellant along with the appeal that, department, as early as 12-7-2007 asked the details of overseas payments towards external commercial borrowings for three years. Certain details were furnished by the appellant on 22-8-2007. Thereafter, on 27-8- 2007 department informed the appellant, that they are liable to pay Service Tax under Banking and Financial Services as recipient of the service. The appellants, however, did not follow the directions of the department. In the meantime, similar issue relating to convertible alternative reference securities and letter of credit also came up for which the appellant made payments on 12-10-2007 and on 4-1- 2008. Since the appellant did not pay the service tax on the MLA and Agent Bank's service under consideration, the department issued summons to Shri Praveen Sood, an officer of the appellant. The department again asked the appellant for furnishing the details on 21-7-2008 and from the chronology of events it is evident that the appellant submitted all the required details vide their letter dated 5- 11-2008. Thereafter on 1-4-2009, the demand notice was issued. It would thus be seen that the department had informed the appellant as early as on 27-8-2007 about the duty liability and asked them to pay the service tax and the delay in the issuance of the show cause notice was only because of the information required for issuance of the show cause notice was submitted by the appellant vide their letter dated 5-11- 2008 received in the department on 14-11-2008. Further, it is observed that the appellant did not take any registration for the said service and no returns were filed for the relevant period and in the absence of the information either from the return or submission from the appellant it is practically not possible for the department to issue show cause notice. In view of the above factual matrix it is not possible to accept Page 17 of 20 ST/20533/2015 &ST/ 20093/2016 the contention that the appellant had a bona fide doubt. In my view, even if they had a bona fide doubt, they should have provided the precise information in July, 2007 itself so that the show cause notice could have been issued within the normal period of limitation. I also find that the Member (Judicial) has observed that the information was available in the balance sheet, etc. In my considered view, the information should be provided to the concerned jurisdictional assessing authority. The balance sheet may be providing some details but these generally do not provide the precise details to enable the department to issue demand notice. In any case the balance sheet may be a public document but the question is whether the balance sheet or information was given to the assessing authorities. In the present case, the appellants did not provide the information in July, 2007. They did not pay the tax as per the direction of the letter dated 27-8-2007. Under the circumstances, I am of the view that the relevant information was suppressed from the department and extended period of limitation has been correctly invoked."
4.17 In case of Ideal Security [2011 (23) S.T.R. 66 (Tri. - Del.)], Delhi bench held as follows:
"7. When we look into para 7 of the appellate order, we are able to confirm that there was difference in two sets of documents that were relied upon by the appellant. One such document was ST-3 return and the second one is its own balance sheet and profit and loss account. The authority recorded that the appellant failed to explain the difference. Therefore, the disclosure being found to be faulty, adjudication was completed on the basis of figures appearing in its financial statements. The authority did not give any concession on the statutory dues. It comes out from Para 8 & 9 of the appellate order at page 10.
8. So far as the contention of the appellant in respect of time bar issue and also adjudication under Section 73 is concerned, the appellate authority dealt with the issue in para 10 and he found that one of the element like suppression, which is essential ingredient in Section 73 is present. Therefore, he held that the proceeding was well within time. When he found all these aspects, he made the appellant liable to pay penalty also. He did not give any concession in respect of penalty.
9. We do agree with the ld. Appellate Authority in the matter of the discrepancy noticed by him in respect of the considerations received and appearing in different manner in two different statutory documents. While the ST 3 return was statutory document under Finance Act, 1994, the balance- sheet and profit and loss account were statutory documents under Companies Act, 1956. Therefore, when the public documents bring the discrepancy, the onus of proof was on Page 18 of 20 ST/20533/2015 &ST/ 20093/2016 the assessee to come out with clean hand to prove its stand. When we did not find any merit on the part of appellant, we agree with ld. appellate authority that invoking Section 73 is appropriate."
Therefore, the conclusion arrived at by the Commissioner for invoking extended period of limitation does not warrant any interference. Consequently, the tax liability for the period October 2008 to March 30.06.2012 is liable to be confirmed. However, on the computation of demand for the said period, there are certain receipts which have been brought on record by the appellant during the course of hearing claiming that it is not part of the consideration towards rendering taxable services in the discipline of yoga viz. donation by the visiting public to the ashrams, massage receipts, contribution from SYVDA, Neyyar Ashram, insurance claims for the Chennai unit, Haiti Earthquake Donation etc., supported by the entries made in the relevant P&L Account of the respective years but wrongly included in the gross taxable value of the demand. We find prima facie merit in the said argument. Thus, the learned Commissioner should examine these receipts in computing the demand based on evidences placed through their Miscellaneous Applications and any other evidences that would be produced by the appellant before him during de novo proceeding.
18. Thus, the findings are summarised as follows:-
i. Service tax on the activity of yoga for the period October 2008 to 30.06.2012 under the category of 'health and fitness service', yoga courses of TTC, ATTC and Vastu Shastra under 'Commercial Training and Coaching services' is liable to be paid; however, the exact amount of demand, applicable interest and penalty to be computed for the said period after taking note of the receipts not connected with the said activities as claimed by the appellant.Page 19 of 20
ST/20533/2015 &ST/ 20093/2016 ii. Levy of service tax for the period 01.07.2012 to 31.03.2014 be examined in the light of the 11C Notification No.42/2016-ST dated 26.09.2016.
19. Appeals are disposed of in above terms. Miscellaneous applications are also get disposed of.
(Order pronounced in Open Court 25.03.2025) (D.M. MISRA) MEMBER (JUDICIAL) (R BHAGYA DEVI) MEMBER (TECHNICAL) Raja....
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