Commissioner Of Central Excise, Nagpur vs Act Careers P. Ltd

(Arising out Order-in-Appeal No. SR/295/NGP/2010 dated 20.09.2010 passed by the Commissioner of Customs & Central Excise (Appeals), Nagpur)

For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

1. Whether Press Reporters may be allowed to see No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy Seen of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

Commissioner of Central Excise, Nagpur Appellant

Vs.

Act Careers P. Ltd. Respondent

Appearance:

Shri K.S. Mishra, Addl. Comm. (AR) for the appellant Shri Kapil Hirani, CA for the respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

Date of hearing : 01/05/2015 Date of decision : 01/05/2015

O R D E R No:..

Per: M.V. Ravindran:

This appeal is preferred by the Revenue against Order-in-Appeal No. SR/295/NGP/2010 dated 20.09.2010.

2. Heard both sides and perused the record.

3. The issue involved in this appeal is whether the course conducted by the respondent is covered under the category of Commercial Training & Coaching service as envisaged under Section 65 (27) of the Finance Act, 1994. We find the period involved in this case is April 2008 to March 2009. The Adjudicating Authority after following the due process of law confirmed the demands raised against the respondent assessee holding that the curriculum which has been put forth by the respondent assessee will be covered under the category of Commercial Training & Coaching service and not eligible for availing the benefit of Notification 24/04-ST dated 10.09.2004 as amended by Notification 3/10 dated 27.02.2010.

4. On appeal, the first appellate authority after considering the submissions made before him has after considering the facts of the case, came to the conclusion that the services rendered by the appellant would be eligible for the benefit of Notification 24/04-ST as amended. Revenue is aggrieved by such an order and has filed the appeal.

5. Ld. Departmental Representative after taking us through the records would submit that the training imparted by the assessee is for furtherance of knowledge of the trainee and does not enable them to seek employment or undertake self-employment which is the prime requirement of the definition availing the benefit of Notification 24/04 as amended.

6. He has also relied upon CBEC circular no. 107/01/09-ST dated 28.01.2009 and reads the same. He would rely the judgment of this Tribunal in Sadhana Educational & People Dev.Services Ltd. vs. CCE 2014 (33) STR 575 (Tri-Mum) and Prof.Ulhas Vasant Bapat vs. CCE 2013-TIOL-1510-CESTAT-MUM and read extensively from the said judgments.

7. Ld. CA reiterated the impugned order.

8. We find that the submissions put forth by the ld. Departmental Representative and the grounds of appeal as taken by the department are not in consonance with the factual matrix as has been considered by the first appellate authority. The first appellate authority while considering the entire issue, during the relevant period in question, recorded the following finding :

11. The aforesaid curriculum imparts skills to the students in the field of practical accounting, auditing, etc which enables them to get direct employment as Asst. Manager (Accounts & Finance), Asst. Commercial Manager, Executing (Accounts & Finance), Manager Operations. Accounts Executive, Audit Executive Assistant. Back Office Asst etc. Further, the student can opt to practice as independent accountants maintaining books of accounts of small business houses on contract basis and or decide to practice as Income Tax or Sales Tax/Vat practitioners. ''The nature and scope of the course is designed with the object of providing employment to the students and / or enabling the students to undertake self-employment directly, after such training in the field of accounts and taxation, which establishes that their institute fulfilled the erstwhile criteria of a vocational training institute Hence, the appellants are entitled to exemption under the category vocational training institute in terms of the Notification No. 24/2004 dt 10.09.2004. The amendment vide Notification No, 3/2010-ST dated 27.02.2010 has specific mention of coming it into force on and from the date of its publication in the Gazette of India i.e. w.e.f 27.02.2010 only, where after the mandatory affiliation of institute with National Council for Vocational training is necessary for eligibility for the exemption from service tax. Thus for the period prior to 27.02.2010, the denial of exemption under Notification No. 24/2004-ST dt. 10.09.2004 by the lower authority is not justified.

12. The answer to the question as to whether the training by the Appellant enables the trainee to seek employment or undertake self-employment directly alter such training of coaching is in the affirmative as the department has not disputed that the trainees after having been trained can not seek employment directly. On the contrary, the appellant has furnished specimen declarations of their students getting satisfactory job placement. It is important to note that only in cases where trainees can seek employment directly after the training can the institute be considered to be covered by the exemption. This view is supported by the following decisions of Honble Authority for Advance Rulings and CESTAT.

9. As against the above reproduced factual findings we find that Revenue has not contraverted any of the said findings in the grounds of appeal. In the absence of any evidence which would indicate that the training imparted by the respondent does not enable the trainee to seek employment or undertake self employment, findings of the first appellate authority as factual matrix are uncontested and are to be held as correct.

10. Ld. Departmental Representative had placed relied on the judgment of the Tribunal in the case of Sadhana Educational & People Dev. Services Ltd. (supra) to canvas the argument that the said judgment was considering the very same issue and has held what is vocational training as per Technician Vocational Apprentices under the Apprentices (Amendment) Act, 1961. He would submit that after examining the engineering and non-engineering training, the bench held that the benefit of Notification 24/04-ST as amended will not be applicable to the appellant therein.

11. We have considered the said submissions and perused the judgment of this Tribunal. We find that basically the said judgment was rendered in respect of the courses undertaken by the appellant therein which were two years course in PG diploma in management. We find in para 4.1 the bench had categorically recorded The explanation clearly states that training or coaching should be vocational in nature and it should impart skills to seek employment or self-employment after such training. Subsequently in para 7 after reproducing the Engineering and Non-engineering trades, the bench held as under:-

The nearest Trade is Human Resource Executive, Marketing Executive, Finance Executive. These trades are in very narrow campus compared to MBA course being conducted by the appellant. Even the level as name Executive suggest is elementary. Under the circumstances, we do not consider the course conducted by appellant can be considered as Vocational Course within the scope of Notification no. 24/2004-ST, dated 10.09.2004. Accordingly, we hold that service provided by the appellants are not eligible for the benefit of Notification no. 24/2004-S.T. dated 10.09.2004.

12. We find that the training imparted by the respondent herein and as recorded by the first appellate authority would definitely get covered under the category of Finance Executive in Non-engineering trades as notified by the Apprentices (Amendment) Act. Accordingly, we hold that in fact the judgment of the Tribunal in the case of Sadhana Educational & People Dev.Services Ltd. (supra) supports the case of the respondent assessee in this appeal.

13. We find that the reliance placed by the Departmental Representative on the decision of the Tribunal in the case of Prof.Ulhas Vasant Bapat (supra) would also not carry the case of the Revenue any further as in that case the issue was regarding the coaching the students in English language. In the case in hand, the factual findings as recorded by the first appellate authority (hereinabove reproduced by us) are not contested or contraverted by the Revenue.

14. In view of the foregoing, we hold that the appeal is devoid of merits and needs to be rejected and we do so.

15. The impugned order is upheld and the appeal is rejected.

(Operative part pronounced in Court)

(P.S. Pruthi) (M.V. Ravindran) Member (Technical) Member (Judicial)

//SR

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