K. Anpazhakan DECISION
P.K. Choudhary, Member (J)
1. The present appeal has been filed by M/s. Kanhaiya Singh Vision Classes Pvt. Ltd. (the Appellant) being aggrieved by the Order-in-Original dated 17.03.2021 passed by the Ld. Adjudicating authority by which the demand of service tax of Rs. 3,71,52,384/- for the period from April 2013 to 31st December, 2016 by invoking the extended period of limitation under the proviso to Section 73(1) of the said Finance Act, 1994 was confirmed along with imposition of interest and equivalent penalty under the provisions of the Finance Act, 1994.
2. Briefly stated, the facts of the case are that the Appellant is engaged in providing coaching services to the aspiring students for qualifying the competitive entrance examinations into the engineering/medical institutes and is thus registered under the service tax regime having registration no. AADCK9129JSD001.
3. Based on investigation conducted by the DGGI team, the Appellant was issued with a show cause notice dated 24.09.2018 alleging non/short payment of service tax on coaching services on the basis of the documents seized by the department. It was the allegation of the department that the Appellant has artificially bifurcated the consideration received towards coaching services (under the head tuition fee from students) in to other categories such as Income from Bag trade, Sale of I Card, Sale of Prospectus/Form and Publication Section L. Thus, it was alleged that the Appellant is also liable to pay service tax on consideration received towards Publication Section L, major being the income from sale of publication section L. It was also alleged that the Appellant has reported less turnover in their audited financial statement for certain years and thus the demand came to be calculated on the basis of the documents seized by the department by ignoring the audited financial statements.
4. The Appellant had replied to the SCN by stating that the value of sale of books cannot be included in the value of coaching services as the same was sale of goods and cannot be taxed as per Notification No. 12/2003-ST : MANU/DSTX/0014/2003 dated 20.06.2003. The Appellant had also placed reliance on several decisions of the Tribunal in this respect.
5. The LD. Adjudicating authority while passing the impugned OIO dated 17.03.2021 confirming the demand of tax with equivalent penalty, held that the Appellant had bifurcated its revenues in to sale of publication income to pay less service tax on coaching services and that there was no documents provided by the Appellant to prove income from sale of books as a separate stream of income independent from coaching services. As regards figures taken from seized records to levy service tax ignoring the balance sheet figures, the Ld. Adjudicating authority was of the view that the Appellant has misdeclared values in audited balance sheet and thus the computation of the department in the SCN was correct to levy service tax.
6. Being aggrieved, the Appellants have preferred the present appeal before the Tribunal.
7. The Appellants in their additional written submission have referred to the following judgments in their favour on the issue of non-inclusion of sale value of books in consideration charged for coaching services-
a. CHATE COACHING CLASSES PVT. LTD. Versus COMMR. OF C. EX., AURANGABAD MANU/CM/0171/2012 : 2013 (29) S.T.R. 138 (Tri. - Mumbai)
b. CEREBRAL LEARNING SOLUTIONS PVT. LTD. Versus COMMR. OF C. EX., INDORE MANU/CE/0430/2013 : 2013 (32) S.T.R. 379 (Tri. - Del.)
c. M/s. Smart Value Products & Services Ltd. Vs. Commissioner of Central Goods & Service Tax, Noida in APPEAL No.ST/70817/2018-CU[DB] vide Final Order No. 71643/2018 dated 26.07.2018
d. PINNAC........