Commissioner Of Central Excise & Service Tax And Ors vs Sikkim Manipal University Of Health Medical And Technological Science And Ors

Arup Kumar Goswami, CJ

Tax Appeal No. 01 of 2017 is preferred under Section 35G of the Central Excise Act, 1944 (for short, “the Act of 1944â€) against the Order

No. 76311/2016 dated 16.12.2016 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Eastern Zonal Bench, Kolkata in

Appeal No. ST/75010/2013 whereby, while allowing the appeal with consequential reliefs, the Order-in-Original No. 11/COM/ST/SLG/12-13 dated

01.10.2012 passed by the Commissioner of Customs, Excise and Service Tax, Siliguri, hereinafter referred to as Commissioner, was set aside.

Tax Appeal No. 02 of 2017 is an appeal under Section 35G preferred against the Order No. 75757/2016 dated 14.12.2016 passed by the CESTAT,

Eastern Zonal Bench, Kolkata in Appeal No. ST/76840/2016 whereby, while allowing the appeal with consequential reliefs, the Order-in-Original No.

22/COMM/ST/SLG/16-17 dated 08.09.2016 passed by the Commissioner was set aside.

In both the appeals parties are same. The respondent in the appeals had raised a preliminary objection to the maintainability of both the appeals

under Section 35G of the Act of 1944 by filing separate preliminary objections to that effect on 20.09.2017.

We have heard Mr. B.K. Gupta, learned counsel appearing for the appellant in both the appeals and Mr. Sameer Rohtagi, learned counsel, who also

appear for the respondent in both the appeals on the maintainability of the appeals under Section 35G of the Act of 1944.

The respondent is a University set up under the Sikkim Manipal University of Health, Medical and Technological Science Act, 1995, enacted by the

Sikkim State Legislature.

For the purpose of proper appreciation we will take note of the basic facts that gave rise to both the appeals as hereunder:

Tax Appeal No. 01 of 2017

A show cause-cum-demand notice dated 07.03.2012 was issued to Sikkim Manipal University, for short, “SMUâ€, by the Commissioner, on the

allegation that SMU was found engaged in providing “franchise service†as defined in sub-clause (zze) of clause (105) of Section 65 of the

Finance Act, 1994 (for short, “the Act of 1994â€) to different Learning Centres in contravention of the provisions of Sections 66, 67, 68, 69 and 70

of the Act of 1994 read with Rules 4, 6 and 7 of Service Tax Rules, 1994, as amended, (for short, “the Rules of 1994â€) inasmuch as it failed to

obtain service tax registration for providing franchise service, which is a taxable service, and it failed to discharge its due service tax liability inclusive

of Education Cess and Secondary & Higher Education Cess amounting to Rs.1,13,06,993/- only for the period from April 2007 to February 2011.

Though no reply was submitted by the respondent, the representative of the respondent had availed the opportunity of personal hearing and had also

submitted written submissions.

The Commissioner recorded a finding in the Order-in-Original dated 01.10.2012 that more than 860 Learning Centres were in operation as on

24.02.2011. SMU had collected registration fee, accreditation fee, affiliation fee and inspection fee from different Learning Centres spread throughout

the country. It is also recorded that there was a relationship of “franchisor†and “franchisee†in between SMU as “franchisor†and

Learning Centres as “franchisee†for the purpose of the Act of 1994. It was recorded that non-payment of service tax did not appear to be bona

fide and facts were suppressed from the Department by not submitting statutory returns. Though the jurisdictional Service Tax Authority in the show

cause-cum-demand notice had taken the amount received by SMU from Learned Centres as accreditation fee/registration and inspection fee as

taxable value and had indicated service tax amount as Rs.1,13,06,993/-, on recalculation, the Commissioner determined the total amount of service tax

inclusive of Education Cess and Secondary & Higher Education Cess to be Rs.1,01,51,705/-. Consequently, the Commissioner at paragraph 5.1 of the

Order-in-Original ordered as follows:

“5.1 In view of the above discussion and findings, I do hereby order the following.

[A] I confirm the demand of Service Tax including Education Cess and Secondary & Higher Education Cess, to the tune of Rs.1,01,51,705/- (Rupees

one crore one lakh fifty one thousand seven hundred five) only from the said noticee under Section 73 (1) of the Finance Act, 1994.

[B] Applicable interest for the relevant period is to be paid by the said noticee in terms of Section 75 of the Finance Act, 1994.

[C] I impose penalty of Rs.1,01,51,705/- (Rupees one crore one lakh fifty one thousand seven hundred five) only on the said noticee in terms of

Section 78 of the Finance Act, 1994.â€​

The CESTAT accepted the argument of the respondent that when the fee charged by SMU and shared with Learning Centres is not subject to

service tax, amount in respect of accreditation fee cannot be brought under the net of service tax.

Tax Appeal No. 02 of 2017

A show cause-cum-demand notice dated 08.04.2016 was issued stating that SMU had been collecting alumni fees along with admission fee at the

time of registration from their students and it had violated the provisions of Section 68, 69 and 70 of the Act of 1994 read with Rules 4, 6 and 7 of the

Rules of 1994 inasmuch as SMU failed to obtain service tax registration and it failed to pay service tax amounting to Rs.2,25,64,753/- for the period

from 2011-12 to 2015-16 (up to September 2015) in respect of alumni fee so collected by them which was taxable to service tax under the category of

“Business Auxiliary Services†for the period up to 30.06.2012 and thereafter under “Other than Negative Services†for the period from

01.07.2012 under Section 66B of the Act of 1994.

The respondent submitted reply and the representative of the respondent had availed the opportunity of personal hearing and had also submitted

written submissions.

The Commissioner recorded a finding in the Order-in-Original dated 08.09.2016 that activity of the alumni services provided by SMU is not in

relation to furtherance of education and the same is for the benefit of the former students and not for the existing students and accordingly, held that

taxability of alumni fees prior to 01.07.2012 will fall under sub-clause (6) of the definition of “Business Auxiliary Services†and post 01.07.2012

under “Other than Negative Serviceâ€. It was also recorded that there was suppression of facts with intention to evade payment of service tax.

Consequently, the Commissioner at paragraph 7 of the Order-in-Original ordered as follows:

“7. Considering all the facts of the case, I pass the following order:

i) I confirm the demand of Service Tax and Cess amounting to Rs.2,25,64,753.00 (Rupees two crores twenty five lakhs sixty-four thousand seven

hundred and fifty three) only, for the period from 2011-12 to 2015-16 (upto September 2015), as detailed in calculation sheet marked as Annexure-A

enclosed with the Show cause Notice, in terms of proviso to sub-section (1) of Section 73(1) of the Finance Act 1994; read with sub-section(2) of

Section 73 of the Finance Act, 1994.

ii) Interest at the appropriate rate as per Section 75 of the said Act as applicable during the material period for delayed payment of Service Tax

including Education Cess and Secondary & Higher Education Cess upon the entire demand as referred above is also to be paid.

iii) I impose penalty equal to the unpaid duty amount of Rs.2,25,64,753.00 (Rupees two crores twenty five lakhs sixty-four thousand seven hundred

and fifty three) only, under Section 78 of the said Act for failure to pay Service Tax in accordance with provision 68 of the said Act. However, the

Noticee can avail the option of paying only 25% of such amount i.e. Rs.56,41,188.00 (Rupees fifty six lakhs forty one thousand one hundred and

eighty- eight) only, as “penaltyâ€, subject to fulfillment of the conditions as prescribed under the 2nd and 3rd Proviso of Section 78(1) of the

Finance Act, 1994.

iv) I impose a penalty of Rs.10,000.00 (Rupees ten thousand) only under Section 77(1)(a) of the said Act for failure to take registration under the

category of Business Auxiliary service as provided under Section 69 of the said Act.

v) I impose a penalty of Rs.10,000.00 (Rupees ten thousand) only under Section 70 of the said Act read with Rule 7C of the Service Tax Rules, 1994;

for failure to submit statutory returns in prescribed manner under the category of Business Auxiliary Service.â€​

The CESTAT recorded a finding that SMU had collected some money in the name of alumni fee but without providing any service and so, when

no service is provided then applicability of service tax is not in question.

Mr. B.K. Gupta, learned counsel for the appellant submits that taxability of accreditation fee is not an issue in Tax Appeal No. 01 of 2017. It is

further submitted that CESTAT was wholly wrong in holding that the decision rendered by CESTAT, New Delhi in the case of Punjab Technical

University vs. Commissioner of Central Excise and Service Tax, reported in MANU/CE/ 0655/2015, is not applicable to the facts of Tax Appeal No.

01 of 2017 though the ratio of the above case applies in all fours to the facts of the case. CESTAT did not pass any order regarding the rate or value

of the service, or its classification regarding its taxability, he contends. Since orders of the CESTAT in both the appeals is not in relation to the

determination of any question having a relation to the rate of duty for service tax for the purpose of assessment, the appeals are maintainable before

this Court. He has placed reliance on the judgment dated 05.09.2019 of the Hon’ble Supreme Court in the case of Commissioner of Customs,

Bangalore-1 vs. M/s Motorola India Ltd., passed in Civil Appeal No.10083 of 2011.

Mr. Sameer Rohtagi, learned counsel for the respondent submits that having regard to the Orders-in-Original and the Orders passed by the

CESTAT, it is evident that determination of taxability of accreditation fee as received by the respondent University as well as alumni fee is an issue in

the appeals. Substantial questions of law, as formulated by the appellant in both the appeals, also bear out the same. It is submitted that what is meant

by the term “determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessmentâ€

had fallen for consideration before the High Court of Delhi in the case of Commissioner of Service Tax vs. Ernst & Young Pvt. Ltd., reported in

MANU/DE/0539/2014 and the High Court of Delhi had held that determination of any question relating to rate of tax would directly and proximately

involve the question as to whether the activity falls within the charging section and service tax is leviable on the said activity. It is submitted that after

the aforesaid judgment was delivered on 25.02.2014, sub-Section (2) of Section 35L was inserted by the Finance (No.2) Act, 2014 making it clear that

determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of the goods or service for

the purpose of assessment and therefore, these appeals are not maintainable before this Court. He also places reliance in the case of Navin Chemicals

Mfg. and Trading Co. Ltd. vs. Collector of Customs, reported in MANU/SC/0571/1993. It is also submitted by Mr. Rohtagi that the Special Leave

Petition filed by the Revenue against the decision in Ernst & Young Pvt. Ltd. (supra) was dismissed as withdrawn by the Hon’ble Supreme Court

by an order dated 19.01.2015.

We have considered the submissions of learned counsel for the parties and have perused the material on record.

Whether or not the CESTAT was correct in not following the decision rendered by CESTAT, Principal Bench, New Delhi, in Punjab Technical

University (supra) is a question that will take us to examine the issue on merits. When we are considering a preliminary objection regarding

maintainability of the appeals before this Court, we deem it appropriate not to examine the correctness or otherwise of the order of the CESTAT

dated 16.12.2016 at this stage.

Section 83 of the Finance Act, 1994 provides, amongst others, that Section 35G and Section 35L of the Act of 1944, as in force from time to time,

shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise and therefore, Section 35G as well as 35L are

applicable for the purpose of preferring an appeal in relation to service tax.

The key to the question posed with regard to maintainability of the appeals lies on the meaning to be ascribed to the expression “determination

of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessmentâ€, which expression finds place in

Section 35G as well as in Section 35L of the Act of 1944.

Section 35G (1) of the Act of 1944, which is relevant for our purpose, is reproduced herein below:

“35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the

1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of

excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.â€​

(emphasis supplied by us)

Section 35G provides that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day

of July, 2003 except an order relating, among other things, to determination of any question having a relation to the rate of duty of excise or to the

value of goods for the purpose of assessment, if the High Court is satisfied that the case involves a substantial question of law. Thus, an appeal against

an order relating to determination of any question having a relation to the duty of excise or to the value of goods for the purpose of assessment will not

be maintainable before the High Court.

It will also be relevant to take note of Section 35L of the Act of 1944 and therefore, the same is reproduced hereunder for better appreciation.

“35L. Appeal to Supreme Court.â€"An appeal shall lie to the Supreme Court fromâ€

(a) any judgment of the High Court deliveredâ€

(i) in an appeal made under section 35G; or

(ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003;

(iii) on a reference made under section 35H, in any case which, on its own motion or on an oral application made by or on behalf of the party

aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or

(b) any order passed before the establishment of the National Tax Tribunal] by the Appellate Tribunal relating, among other things, to the

determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment.

(emphasis supplied by us)

(2) For the purpose of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability

or excisability of goods for the purpose of assessment.â€​

A perusal of Section 35L (b) goes to show that an appeal against any order passed by the CESTAT relating, among other things, to the

determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment shall lie directly to the

Hon’ble Supreme Court. Such order, as is noticed earlier, is not made appellable to the High Court, as Section 35G specifically excludes such an

order from being a subject matter of an appeal before the High Court.

In Navin Chemicals Mfg. and Trading Co. Ltd. (supra), the Hon’ble Supreme Court observed that the phrase “relation to†is, ordinarily of

wide import but in the context of its use in the expression in Section 129-C of the Customs Act, 1962, it must be read as meaning a direct and

proximate relationship to the rate of duty and to the value of goods for the purpose of assessment. The Hon’ble Supreme Court, while considering

Section 129-D of the Customs Act, 1962, at paragraph 11, had observed as follows:

“11. It will be seen that Sub-section 5 uses the said expression 'determination of any question having a relation to the rate of duty or to the value of

goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes of this sub-section'. The Explanation

says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to

the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for

purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation

expressly confines the definition of the said expression to Sub-section 5 of Section 129-D, it is proper that the said expression used in the other parts of

the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions

relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said

expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and

proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be

increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of

the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and

proximately as to the rate of duty or the value of the goods.â€​

A perusal of the judgment of the High Court of Delhi in Ernst & Young Pvt. Ltd. (supra) goes to show that a contention was advanced by the

Revenue that the expression “rate of duty†or “value of service†should be construed in a narrow manner limiting it to the rate of duty

payable on the service chargeable to tax or the valuation of the service which is chargeable to tax and that the same will not encompass the question

as to whether the activity is a taxable service under the charging section. It was also contended that when the question relates to excisability or levy of

tax, the same does not amount to a dispute about the rate of tax. The High Court of Delhi held that determination of any question relating to rate of tax

would necessarily directly and proximately involve the question, which is, whether the activity falls within the charging section and service tax is

leviable on the said activity. It was further held that the said determination is integral and an important injunct to the question of rate of tax. In case

service tax is not to be levied or imposed and cannot be imposed under the charging section, no tax would be payable. Accordingly, it was held the

words „rate of tax‟ in relation to rate of tax would include the question whether or not the activity is excisable to tax under a particular or specific

provision.

In the Memo of Appeal of Tax Appeal No. 01 of 2017, the appellant has, amongst others, framed the following substantial questions of law:

“A. xxxxxxxxxxxxx

B. Whether the respondent is liable to pay service tax or not?

C. xxxxxxxxxxxxxâ€​

By filing an affidavit dated 12.03.2018, the appellant has framed the following substantial questions of law, which are as follows:

“I. Whether the respondent University is liable to pay service tax on “Accreditation Fees†received by it from its Learning Centres under

Sections 65(47) & (48) of Finance Act, 1994.

II. xxxxxxxxxxxxxxx.â€​

Subsequently, another affidavit dated 26.08.2019 was filed framing the following substantial questions of law:

“(I) xxxxxxxxxxxxxxx

(II) xxxxxxxxxxxxxxx

(III) xxxxxxxxxxxxxxx

(IV) Whether the Hon’ble Tribunal is justified in setting aside the Order-in-Original without appreciating the fact that service rendered by the

party falls under the purview of Sub Section (47) and (48) of Section 65 of the Finance Act 1994 as per which they were liable to pay service tax and

were also required to get registered for paying tax and filing returns?

(V) xxxxxxxxxxxxxxxxxâ€​

Similarly, in Tax Appeal No. 02 of 2017, the appellant has framed the following substantial questions of law:

“A. xxxxxxxxxxxxxxxxx

B. Whether M/s Sikkim Manipal University has failed to obtain Service Tax Registration and failed to pay Service Tax amounting to Rs.2,25,64,753/-

only for the period from 2011-12 to 2015-16 (up to September 2015) in respect of alumni fee collected by them at the time of registration from their

students which was taxable to Service Tax under the category of “Business Auxiliary Services†for the period up to 30.06.2012 and thereafter

under “Other than Negative Servicesâ€​ for the period from 01.07.2012 under Section 66B of the Finance Act, 1994.

C. xxxxxxxxxxxxxxxxxâ€​

Subsequently, another affidavit dated 12.03.2018 was filed framing the following substantial questions of law:

“I. Whether the respondent University is liable to pay service tax on “Alumni Fees†received by it from its students under Section 65(19) &

Section 66 D (i) of Finance Act, 1994.

II. xxxxxxxxxxxxxxxxxâ€​

Having regard to the nature of the Orders-in-Original as well as the orders of CESTAT, it is evident that determination of the question as to

whether service tax demand on the accreditation fees received by the respondent as also on alumni fees collected can stand to be levied by the

Department or not arise in these appeals. The substantial questions of law framed by the appellant, as noted herein above, also demonstrate that the

question as to whether the respondent is liable to pay service tax on accreditation fee and alumni fee as collected by SMU very much arises in the

appeals.

In M/s Motorola India Ltd. (supra), the question that arose for consideration was as to whether an appeal from CESTAT, involving an issue

regarding violation of conditions contained in the customs exemption notification would lie before the High Court under the provisions of Section 130 of

the Customs Act, 1962 or to the Hon’ble Supreme Court under the provisions of Section 130E of the Customs Act, 1962. It is noticeable that

Section 130E does not have a provision like Section 35L (2) of the Act of 1944.

The Hon’ble Supreme Court, on the facts of the case, held that neither any question with regard to determination of rate of duty nor a question

relating to valuation of goods for the purpose of assessment arose in the case and that the only question that had arisen was as to whether the

assessee had breached conditions which are imposed by the notification for getting exemption from payment of customs duty or not.

While respectfully following the decision of High Court of Delhi in Ernst & Young Pvt. Ltd. (supra), we also note that Sub-Section (2) of Section

35L, which was inserted by the Finance (No.2) Act, 2014 with effect from 06.08.2014, makes it abundantly clear that the determination of any

question having relation to the rate of duty shall include determination of taxability or excisability of goods for the purpose of assessment.

In view of our discussions above, we are of the considered opinion that these appeals before this Court are not maintainable under Section 35G of

the Act of 1944.

Preliminary objection of the respondent having been upheld, the appeals are disposed of as not maintainable.