Custom, Excise & Service Tax Tribunal
M/S. Academicians Classes vs Cce, Jaipur on 6 July, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
West Block No.2, R.K.Puram, New Delhi-110066.
Principal Bench, New Delhi.
ST/403/07
(Arising out of Order-in-Appeal No.91(GRM)ST/JPR-I/2007 dt.9.5.07 passed by Commissioner(Appeals), Jaipur-I)
M/s. Academicians Classes Appellant
Versus
CCE, Jaipur Respondent
, Appearance Sh. Hemant Bajaj, Adv. For Appellant Sh. Sunil Kumar, Authorised Departmental Representative(DR) for Respondent Coram: Honble Mr. D.N.PANDA, JUDICIAL MEMBER Honble Mr. RAKESH KUMAR, MEMBER (TECHNICAL) Date of decision: 6.7.09 Order No._______________________________ Per D.N.Panda:
Ld. Counsel Shri Hemant Bajaj submits that the appellant has made out a case before the authority below that there was no realization of the fees of Rs.89,485/-in respect of coaching imparted by the Appellant. This is evidence from page 32 of the appeal folder. He submits that appropriate service tax amount relating to unrealized fees was not required to be deposited. So also the service tax relating to fees refunded was also refunded to the candidate who got refund. According to the method of accounting followed by the appellant what that was collected towards service tax in respect of refund amount was Rs.16218/- and that is patent from page 23 of the appeal folder dealing with discussion and finding in the order of the adjudication. Taking these aspects into consideration the appellant has explained the fact at page 20of appeal folder through a submission before the Ld. Asstt. Commissioner.
2. Shri Bajaj Submits that once the consideration of Rs.89,485/- appearing at page 32 is considered for reduction from course fees of Rs.4,52,664/- appearing on that page, that gives rise to net receipt of fees of Rs.3,63,179/-. The value of the taxable service not being exceeded Rupees four lakhs in a year i.e. relating to the impugned period, the appellant is entitled to the benefit of Notification No.6/05-ST dt.1.3.05 issued in favour of small tax payers. But the authorities without examining the averments of the appellant as made above made the appellant in eligible to the exemption granted by the Notification above. This is precisely disputed before the Tribunal. He further submits that he has no hesitation to satisfy the authority below as to the fact that there was no realization of fees of Rs.89,485/- so also there was refund of service tax of Rs.16,218/- in case of refunds of fees made by the appellant.
3. Ld. DR submits that when the materials were not before the authority to consider the averments of the appellant made today, the appellant has failed to succeed before both the authorities below.
4. Heard both sides and perused the records.
5. There is no difference in agreement with the appellant that the appellant is entitled to appropriate relief of exemption of service tax in terms of Notification No.6/05-ST dt.1.3.05 if condition of notification is satisfied by the said appellant. But the authority below should only test whether the amount of Rs.89,485/- was recovered by the appellant towards the fees. So also, the authority is required to verify whether service tax of Rs.16,218/- was refunded by the appellant in respect of the refunds of the fees made to the candidates. Once the authority is satisfied on these two counts, there is no scope to levy tax on the appellant because the appellant is eligible to the benefit granted by above notification as a small tax payer.
6. Therefore, we remand the matter to the ld. adjudicating authority to make verification of aforesaid factual aspects and pass appropriate order by 30.9.09. It is needless to say that the appellant is entitled to fair opportunity of hearing.
7. In the result, the impugned order is set aside and the matter is remanded to the ld. adjudicating authority.
Order dictated in the open Court.
(D.N.Panda) Judicial Member (Rakesh Kumar) Member Technical km