Custom, Excise & Service Tax Tribunal
Ms Asian School Of Media Studies vs Ce & Cgst Noida on 19 January, 2024
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.I
Service Tax Appeal No.70408 of 2020
(Arising out of Order-in-Original No.1-3/Pr.COMMR./ST/NOIDA/2020-21 dated
11.05.2020 passed by Principal Commissioner Central Goods & Services Tax,
Noida)
M/s Asian School of Media Studies, .....Appellant
(FC 14/15, Sector-16A, Film City, Noida-201301)
VERSUS
Pr. Commissioner of CGST, Noida ....Respondent
(C-56/42, Renu Tower, Sector-62, Noida-201309) APPEARANCE:
Shri Abhinav Kalra, Chartered Accountant for the Appellant Shri Sandeep Pandey, Authorized Representative for the Respondent CORAM: HON'BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) FINAL ORDER NO.- 70035/2024 DATE OF HEARING : 21 November, 2023 DATE OF DECISION : 19 January, 2024 P. K. CHOUDHARY:
The issue involved in this appeal is whether the Appellant is liable to pay Service Tax under the head „Commercial Coaching or Training Services‟ during the period from April, 2015 to June, 2017. The demands have been confirmed by a common adjudication order dated 11.05.2020 by the Commissioner, Central Goods & Service Tax, Noida. The details of demands are as under:-
Sr. Name of the Show Cause Period of Amount in No. Noticee Notice/Statement SCN/SOD dispute (Rs.) of Demand No. & date
1. M/s Asian SOD No. 51/2017 April 2015 8,22,45,203 School of dated 02.04.18 to June (confirmed Media Studies 2017 Rs.7,18,08,322) 2 Service Tax Appeal No.70408 of 2020 (ASMS) SCN No. 17/2019- April 2015 2,71,66,096 20 dated 06.11.19 to June (confirmed 2017 Rs.2,42,71,564) SOD No. 20/2019- October 26,84,502 20 dated 21.10.19 2016 to (confirmed June 2017 Rs.23,97,295)
2. Brief facts of the case are that the Appellant Asian School of Media Studies (ASMS in short) located at FC 14/15, Sector 16A, Film City, Noida (UP), also known as Marwah Studios, is conducting professional/vocational training courses and providing certificates to the students, on the basis of which the students are getting jobs or are trained to work as an entrepreneur or get self-employed.
3. On the basis of intelligence, it appeared to the Revenue that the Appellant is evading payment of service tax as they are conducting training and providing certificates to the students without the approval of either University Grants Commission (hereinafter referred to as "UGC") or by All India Council for Technical Education (hereinafter referred to as "AICTE") and therefore, are not recognized by law. Hence, it appeared that Service Tax was payable in respect of graduation and post- graduation courses in various streams of cinema, mass media, electronic media, etc. provided by the Appellant at the relevant rates and recoverable on the amount charged by the institute.
4. As per the allegations in the SCN, on perusal of agreements entered into between Mewar University and Appellant‟s institute ASMS (including others), it appeared that these agreements w ere for opening of research & development and training centres of Mewar University at ASMS (including others), respectively, and not for granting any affiliation to the said University for conducting educational courses recognized by law. Moreover, UGC has not granted any approval to Mewar University to run courses in collaboration with Asian School of 3 Service Tax Appeal No.70408 of 2020 Media Studies (ASMS) situated at Marwah Studio Complex, Noida.
5. It was also alleged that the Certificate of Affiliation of AAFT with Mewar University filed by Shri Sandeep Marwah bears the date as 01.11.2008, whereas, Mewar University, Chittorgarh has been established by Rajasthan Govt. Act No.4, of 2009. This Act was enacted on 05.02.2009. This shows that the said letter had no authority of law as it was purportedly issued on a date prior to the establishment of Mewar University.
6. With regard to the certificate dated 11.05.2009, issued by Punjab Technical University (PTU) to ASMS, it was claimed by ASMS, that ASMS was affiliated to PTU. On perusal of the said certificate, it appeared that the said certificate recognized ASMS as an authorized learning centre of PTU under distance learning programme, at the approved address AB-12, Community Centre, Safdarjung Enclave, Delhi. Thus, the said certificate of PTU could neither be taken to be a certificate of affiliation nor does it recognize FC-14/15, Sector-16A, Noida premises of ASMS as the authorized learning centre of PTU. Further and more importantly, the students of ASMS are not getting any degree issued by PTU for p u r s u i n g t h e s e c o u r s e s . I n s t e a d , i t i s A S M S w h i c h g i v e s t h e certificate/degree after completion of the courses.
7. Further, it is also alleged that Shobhit University (SU) recognized by Government of Uttar Pradesh was not authorized by UGC to establish extension centres of SU and hence the MOU dated 03.04.2015 between SU and the Appellant to offer various courses was not acceptable as certificate of affiliation/recognition under the law.
8. It therefore appeared to the Revenue that the course/training imparted by the Appellant during the period under dispute, were liable to service tax, under the head „Commercial Training or Coaching Centre, or as services 4 Service Tax Appeal No.70408 of 2020 other than those covered under the negative list, and will not be exempted from service tax under the negative list entry No. (l) of section 66D effective from 1.07.12 till 14.05.2016 or Sr. No.9 of Notification No.25/2012-ST dated 20.06.12 effective from 11.04.2014 as reproduced below:
66D(1) services by way of-
(i) pre-school education and education up to higher secondary school or equivalent;
(ii) education as a part of a curriculum for obtaining a qualification recognised by any law for the time being in force;
(iii) education as a part of an approved vocational education course;
The above entry in the negative list was omitted w.e.f. 14.05.2016 vide Notification No. 9/2016-ST. Entry No. 9 in the exemption Notification No.25/2012-ST, dated 20.06.2012 was inserted vide Notification No.06/2014-ST, dated 11.07.2014:
"Services provided, -
(a) by an educational institution to its students, faculty and staff
(b) to an educational institution, by way of-
(i) transportation of students, faculty and staff
(ii) catering, including any mid-day meals scheme sponsored by the Government,.
(iii) security or cleaning or house-keeping services performed in such educational institution;
(iv) services relating to admission to, or conduct of examination by, such institution; ";
Vide Notification dated 1.03.16 effective 14.05.16, the definition of 'educational institution' was added as clause (oa) in para 2 of the Notification No.25/2012-ST (earlier it was specified in clause (l) of 66D above) as under:
5 Service Tax Appeal No.70408 of 2020 (oa) "educational institution" means an institution providing services by way of-
(i) pre-school education and education up to higher secondary school or equivalent;
(ii) education as a part of a curriculum for obtaining a qualification recognised by any law for the time being in force;
(iv) education as a part of an approved vocational education course;
9. It therefore appeared to Revenue that before or after introduction of the negative list (section 66D) w.e.f. 01.07.2012, only education as part of a curriculum for obtaining a qualification recognized by any law for the time being in force was exempt from service tax, and the activities of the Appellant during the period under dispute, being not recognized by any law, are chargeable to service tax. Accordingly show cause notice/SODs were issued demanding service tax as aforementioned along with penalty under various sections. The SCN/SODs were adjudicated by the learned Commissioner vide Common order-in-original. The proposed demands were confirmed after giving cum-tax benefit, penalties were imposed along with demand of interest. Being aggrieved, the Appellant is in appeal before the Tribunal.
10. Shri Abhinav Kalra, ld. Chartered Accountant appearing for the Appellants urged, interalia, that the same issue has been decided in respect of the Appellant, including other institute, namely, M/s Asian Business School under the common management, by this Hon‟ble Tribunal vide Final Order No.70251-70252/2021 dated 11.11.2021 in Service Tax Appeal No.70076 of 2019 (M/s Asian School of Media Studies), and Appeal No.70077 of 2019 (M/s Asian Business School). He requested that the allegations in the SCN/SODs and the grounds for relief under the present appeal are similar to those in the previous SCNs/SODs, and because the issue is no longer res integra, the same may kindly be 6 Service Tax Appeal No.70408 of 2020 decided accordingly following the principle of res judicata.
11. Prior to issuance of the above Show Cause Notice/SOD for the period April, 2015 to June, 2017 in the instant case, a Show Cause Notice was issued vide file C. No.60/INT/DGCEI/HQ/2013 dated 30.09.2014 for the period 2009-10 to 2013-14 (Up to August, 2013) to M/s Asian School of Media Studies ("the ASMS"), M/s Asian Business School ("the ABS") and M/s Asian School of Communication ("ASC") functioning at the FC 14/15, Sector-16A, Film City, Noida (UP) popularly known as Marwah Studio Complex raising demand of Service Tax under the category of „Commercial Coaching or Training Services‟. Subsequent Statement of demands (SODs) on the identical issue in respect of the M/s ASMS (Asian School of Media Studies) for the subsequent periods were also issued by the respective competent authorities of the CGST Commissionerate, Noida covering period upto March, 2015 in case of ASMS:-
Sr. Name of the Show cause notice / Period of Amount No. Noticee Statement of demand No./ SCN/SOD involved (Rs.)
1. M/s Asian C. No. 2009-10 to 2,95,97,37 School of Media 60/INT/DGGEI/HQ/2013 2013-14 0 Studies (ASMS) dated 30.09.2014 (SCN) (upto Aug‟13) C. No. V(15)Adj./ ST/Noida Sept.‟13 to 1,19,05,15 /ASM/ 69/14/1311-13 dated Dec.‟14 7/-
20.03.2015 (SOD)
C. No. V(30)Tech/SCN/Asian Jan.‟15 to
School/D- Mar‟15 34,28,606/
I/GST/N/135/2017/ 1714- -
15 dated 06.10.2017 (SOD)
C. No. V(15)Adj./ST /Noida/ Sept.‟13 to 8,75,550/-
Asian/70/2014/1347-49 Dec.‟14
dated 23.03.2015 (SOD)
7 Service Tax Appeal No.70408 of 2020
C. No. 20-STR-I/N- Jan.‟15 to 1,81,989/-
I/ASIAN/24/15/ 296 dated March,15
09.10.2017 (SOD)
C. No.20- 2015-16, 4,13,001/-
CE/SCN/ASC/CGST/R-5/Div- 2016-17 &
I/19/2018/251 dated 2017-18
05.04.2018 (SOD) (up to
June,17)
12. The demands were confirmed vide Order-in-Original No.23-28/Commissioner/ST/Noida/2018-19 dated 30.11.2018. On appeal filed by the Appellants, namely, M/s ASMS this Tribunal vide Final Order No.70251-
70252/2021 dated 11.11.2021 in Service Tax Appeal No.70076 of 2019 (M/s Asian School of Media Studies), and Appeal No.70077 of 2019 (M/s Asian Business School) taking note of the legal provisions during the period of dispute commencing from 01.04.2009 to 30.06.2017 allowed the appeals and set aside the impugned order passed by the Ld. Commissioner.
13. Heard both sides and perused the appeal records.
15. We find that the facts of this appeal are squarely covered by the Final Order No.70251-70252/2021 dated 11.11.2021 decided in the case of the Appellant. The relevant paras are reproduced for ready reference:-
"25.1 We find that in the impugned order the demand have been confirmed on the observation that the appellant did not have the authority to issue such certificate /degree/ diploma, and further they did not have valid affiliation with the University - PTU/MU. We find that this contention of Revenue is contrary to the facts, as the appellant have demonstrated that the degree/ diploma certificates were issued by the respective Universities. Thus, the appellants 8 Service Tax Appeal No.70408 of 2020 have imparted education/ vocational training in collaboration with the University and the students have been given qualification or degree which is recognised by law, for the time being in force.
25.2 We further find from the impugned order that the Adjudicating Authority has admitted that the appellant is „authorised learning centre‟ to PTU, but have further observed that such authorisation was in respect of Delhi address only and further such authorisation was for distant education programme only.
25.3 We find that admittedly the students to whom education and training was imparted by the appellant, have received degree/ diploma certificates issued by the respective University. The legal status of the respective University have not been found to be untrue. Further, we find that there is no such bar on the University, in getting the students trained in collaboration with the appellants, for which the syllabus has been prescribed by the University and periodically the University has conducted the exam and issued degree to such successful candidates. Further, learned Counsel has demonstrated that there was a proper laid down curriculum for each of the programme conducted by the appellant, in collaboration by the respective University. Thus, we find that the appellants have conducted education or vocational training, as part of curriculum for obtaining qualification, recognised by law for the time being in force. Further, we find that the 9 Service Tax Appeal No.70408 of 2020 observation of the learned Commissioner that the recognition granted by the PTU to the appellant with respect to the Delhi address is also erroneous, as the Delhi address is the city office or the Head Office, whereas the campus is located at Noida. Further, the learned Counsel for the appellant has demonstrated by annexing a letter from PTU, recognising change of address to Noida Campus. 25.4 We further find that learned Commissioner have admitted in the show cause notice itself, that MU is sending their students for training/ education with respect to various courses like Mass Communication, acting, etc. to the campus of the appellants. We further find that there is no such requirement as to affiliation from a University. The only requirement is, that the course being taught should be part of a curriculum, leading to grant of degree / diploma, recognised by law. Admittedly, the issue of degree/ diploma by the respective Universities have not been found to be fraudulent.
25.5 Further, admitted fact is that the appellant‟s institutions are run by a „Charitable Institute‟ namely „Asian School of Film and TV‟, which is recognised and registered under Section 12A/ 12AA of the Income Tax Act.
25.6 We further find that the MoU entered between the appellants and respective University, providing inter-alia for:-
10 Service Tax Appeal No.70408 of 2020 "a) Marketing related activities such as preparation, printing and dissemination of brochures etc.;
b) Admission related activities such as preparation, printing and distribution of admission forms, counselling, entrance-test and students registration & admission processing;
c) Administrative activities such as management of student affairs, record maintenance and student notifications;
d) Academic activities such as design of course curriculum, creation of program content with due approval of MU/PTU;
e) Student evaluation by designing test mechanism, conducting examinations, evaluating industrial projects;
f) Database management and student‟s records."
25.7 Further, MoU provides that the appellants are entitled to use the logo and style of the University for the specified purposes.
26. Similarly, the appellant has also entered into an agreement with Shobhit University, U.P. (SU for short) effective from the year 2015-16. Similarly, SU is also a State Government University established by the State Legislature, which has received accent of the Governor on 06.03.2012, and was notified in the Gazette Notification on 05.07.2012. Thus, SU is a recognised University under Section 2FF of the UGC Act. The appellants have been appointed as a study / extension centre of SU for professional / vocational academic courses leading to issue of degree/ diploma courses, primarily related to media and fashion study.
11 Service Tax Appeal No.70408 of 2020 26.1 We further find that right from beginning till 30.06.2017 the activity of the appellant in providing educational /vocational training to their students, is as per the pre defined curriculum in collaboration with the respective University, is exempt throughout, as they have provided education and training followed by issue of certificate of degree/ diploma which is recognised by law for the time being in force. Further, we find that on completion of the courses conducted by the appellants, the students/ trainees have either received employment and/or are competent to be self employed.
27. We further find that a Coordinate Bench of this Tribunal (Chennai) in the case of Gateway of Entrepreneurship and Management Studies Trust vs. CCE (supra), under the facts that Gateway was providing coaching and training services to the students of Allagappa University. The University was collecting fee from the students for such coaching. The Department was of the view that the said activities was falling under the „Commercial Training or Coaching Service‟. On appeal by the assessee, this Tribunal appreciating the fact that the assessee is actually an Authorised Education Centre in collaboration with Allagappa University, and the fee collected from the students are remitted to the University and the examination are conducted by the University.
Thereafter, the Degree/ Diploma certificate was issued by 12 Service Tax Appeal No.70408 of 2020 the University and therefore the activity rendered would not fall within the definition of „Commercial Training or Coaching Services‟. The Tribunal also noticed that Gateway are collecting service charges apart from fees which according to Revenue is sufficient to deny exemption under Notification No.10/2003-ST. The Tribunal relied on its earlier ruling in the case of JMC Educational Charitable Trust vs. CCE (supra) and also referred to the ruling of the Kerela high Court in the case of Malapuram Distt. Parallel College Assn.vs. UoI (supra) where similar demand have been set aside observing that the Training and Coaching provided by the appellant / assessee therein is as per the course or curriculum of the University. The Tribunal also took notice that the definition of „Commercial Training or Coaching Centre‟ under Section 65(27) of the finance Act contains exclusion clause excluding - pre-school coaching and training centre or any institute or establishment which issues any certificate or Diploma/ Degree or any educational qualification recognised by law for the time being in force.
This Tribunal recorded a finding that the appellant / applicant are authorised study centre under a MoU entered with the University, on the basis of „Distance Education Centre (DEC) guidelines issued under the IGNOU Act, 1985. Accordingly, it was held that the appellant/ applicant are exempted from Service Tax, even without the benefit of Notification No.10/2003-ST.
13 Service Tax Appeal No.70408 of 2020
28. Similar view was taken by another Co-ordinate Bench of this Tribunal in Trichy Institute of Management Studies vs. CCE (Chennai Bench) Final Order No.286-287/2011 dated 07.09.2011, wherein the Tribunal took notice that the Institution is run like a parallel College and the students are obtaining Degree from the Allagappa University under Distance Education Programme under MoU. This Tribunal relied on the ruling of the Kerala High Court in the case of Malapuram Distt.
Parallel College Assn., where the High Court had declared levy of service tax on parallel Colleges as arbitrary and violative of Article 14 of the Constitution of India. The Hon‟ble High Court further observed that levy of service tax on the education and training provided by parallel college indirectly falls on the students, which is discriminatory.
29. In view of our considered findings, as above, we hold that the appellants is not liable to service tax.
30. As regards, the ground of limitation, we find that the appellant(s) were under bonafide belief that their activity is not liable to service tax and further we find that the appellants have maintained proper record of their activity and have been making compliance with various laws including Income Tax Act, as a charitable organisation.
The books of accounts have been regularly audited and have been filed with various Government Authorities. We find that the issue in dispute involves interpretation of 14 Service Tax Appeal No.70408 of 2020 statute, and as such no malafide can be attributed on the appellants. Admittedly, the only allegation made in the show cause notice for invoking the extended period of limitation is that the appellants have failed to take registration, assess their tax liability, pay the tax, file the returns etc. Admittedly, the whole demand is based on data and information supplied by the appellant as has been demanded by the Revenue. Accordingly, we hold that extended period of limitation is not attracted and the show cause notice(s) are bad for invocation of extended period of limitation."
16. In view of the above, we are of the considered view that the Appellant (ASMS) is not liable to service tax during the period from April , 2015 to June , 2017. We also hold that extended period of limitation is not attracted and the SCNs are not found to be in accordance with law for invocation of extended period of limitation.
17. Accordingly, the impugned order is set aside and the appeal filed by the Appellant is allowed with consequential benefits, in accordance with law.
(Order pronounced in open court on 19th January, 2024) Sd/-
(P. K. CHOUDHARY) MEMBER (JUDICIAL) Sd/-
(SANJIV SRIVASTAVA) MEMBER (TECHNICAL) LKS