EVEREST EDUCATIONAL CHARITABLE TRUST Vs. C.S.T.

JUDGEMENT

(1.) THE first appeal is an appeal against an order passed by the Commissioner of Service Tax in exercise of powers under Section 84 of the Finance Act, 1994 for revision of orders passed by a lower authority that is Additional Commissioner. The second appeal is in respect of a refund claim which is sanctioned consequent to the above adjudication order but not paid. In respect of that order also, the Commissioner has passed a revision order in exercise of powers under Section 84 of the Finance Act, 1994. Since both the matters arise from the same adjudication order initially passed by the Additional Commissioner, both the appeals are taken up together for hearing. The ld. Advocate for the appellants submits that they were running a charitable trust and conducting coaching and training in various fields of management, marketing, computer hardware engineering, human resources development, etc. They had not paid any service tax for such services rendered by them during the period July, 2003 to November, 2005. Revenue was of the view that the appellants should have paid service tax and therefore, a show cause notice dated 2 -4 -2007 was issued demanding service tax. On adjudication, the Additional Commissioner came to the conclusion that the appellant was running a charitable organization and not a commercial organization and therefore they were not covered under the definition of "Commercial Training or Coaching Institutes" as defined under Section 65(27) of the Finance Act, 1994. Further, he also gave a finding that if the appellant was not considered as a charitable institution and is covered by the definition in terms of Section 65(27), they are still eligible for exemption under the Notification No. , dated 10 -9 -2004 for training imparted by "Vocational Training Institutes". This adjudication order was not challenged by either of the parties. Subsequently, in the year 2008, the Commissioner took a view that the said adjudication order was not legal and proper and issued show cause notice for revising the said order in exercise of powers under Section 84 of the Finance Act, 1994.

(2.) IN the meanwhile, consequent to the adjudication order, the appellant had claimed refund of the deposit made by them during the investigation stage. The concerned Asst. Commissioner sanctioned the refund. However, this was not paid to them. The Commissioner took up this sanction order also for revision and issued show cause notice dated 18 -6 -2009. The order passed consequent to the second notice is the subject matter of the second appeal.

(3.) THE Advocate argues that since the revision notice dated 10 -4 -2008 did not raise any proposal for revising the finding regarding the eligibility under exemption Notification 24/2004 -C.E., the finding given by the Commissioner on the first issue alone will not be sufficient to sustain the demand. In reply to the Show Cause notice the appellants specifically pointed out that the show cause dated 10 -4 -2008 does not have any proposal for revising the finding of the original adjudicating authority regarding eligibility for exemption under Notification However, the Commissioner has not given any finding on this issue and in such a situation, confirmation of demand without revising the second finding in appellant's favour which has reached finality is not legally sustainable and therefore, both the impugned orders dated 6 -3 -2009 and 4 -1 -2010 are not sustainable.