By TIOL News Service

MUMBAI, MAY 29, 2015: THIS is a Revenue appeal.

The period involved is April 2008 to March 2009.

The Adjudicating Authority confirmed the ST demand by holding that the curriculum envisaged by the respondent is covered under the category of "Commercial Training & Coaching" service and is not eligible for the benefit of Notification 24/04-ST dated 10.09.2004.

As the Commissioner(A) opined otherwise, the Revenue is in appeal.

The AR submitted 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 for availing the benefit of Notification 24/04-ST as amended.

Reliance is also placed on CBEC Circular 107/01/09-ST dated 28.01.2009 and the decisions in Sadhana Educational & People Dev. Services Ltd. - 2013-TIOL-1830-CESTAT-MUM & Prof. Ulhas Vasant Bapat - 2013-TIOL-1510-CESTAT-MUM.

The respondent supported the order of Commissioner(A).

At the outset, the Bench observed that the grounds of appeal taken by the department are not in consonance with the factual matrix as had been considered by the first appellate authority.

Inasmuch as the lower appellate authority had recorded the following findings:

"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 Hon'ble Authority for Advance Rulings and CESTAT."

The CESTAT observed that the aforesaid factual findings were not contraverted by the Revenue and 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 to be held as correct since not contested.

The Bench also observed that whereas the judgment of the Tribunal in the case of Prof. Ulhas Vasant Bapat (supra) would not carry the case of the Revenue any further, the decision in Sadhana Educational & People Dev. Services Ltd. (supra) would in fact support the case of the respondent assessee inasmuch as the training imparted by the respondent would definitely get covered under the category of Finance Executive in Non-engineering trades as notified by the Apprentices (Amendment) Act.

Holding that the Revenue appeal is devoid of merits, the same was rejected by upholding the order of Commissioner(A).

(See 2015-TIOL-965-CESTAT-MUM)