Page 123 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] ACADEMY FOR PROFESSIONAL EXCELLENCE v. COMMR. OF CGST & EX. 337
He also contested the demand on time-bar and also submitted that penalty could
not be imposed in absence of suppression.
5. Sri D. Halder, appearing for the Revenue, supported the findings
made by the Ld. Commissioner (Appeals) and submitted that the appellant has
provided infrastructural support services to the University and hence the de-
mand is rightly made in the category of Support Service for Business and Com-
merce. He submitted that the decision relied by the appellant in the case of Six
Sigma Educom (supra) as well as other cited decisions pertained to demand raised
in the category of Commercial Coaching Centre services and hence distinguisha-
ble having no application in the instant case. He accordingly prayed that the ap-
peal be rejected being devoid of merit.
6. Heard both sides and perused the appeal records.
7. The issue that is required to be decided is whether the appellant op-
erating as Learning Centre for Sikkim Manipal University can be made liable to
service tax under the category of Support Services of Business and Commerce.
8. We find that the Sikkim Manipal University is a recognised universi-
ty under UGC and is certainly not doing any business activity but providing ed-
ucation services and these facts are not in dispute. The similar services carried on
the appellant, being identical services to that of the university, cannot by any
stretch of imagination be classified under support services of business when the
service provided by the University is not a business activity itself. We agree with
the contentions raised by the appellant that the parallel institutes imparting de-
gree courses recognised by law are clearly excluded from the service category of
“Commercial Training or Coaching Centre” as has been held by the Hon’ble Ker-
ala High Court in St. Antony’s Educational and Charitable Society v. Union of India
[2006 (1) S.T.R. 137 (Kerala)] and the Tribunal’s Bangalore Bench in Tandem Inte-
grated Services [2010 (20) S.T.R. 469]. Thus, the classification under the head
“Support Services of Business and Commerce” is per se incorrect as education
services can neither be treated as a “Business” nor as “Commerce” and therefore,
the impugned demand is not sustainable.
Moreover, we also agree with the arguments advanced by the Ld. CA
that once a particular service has been specifically excluded from a particular
taxing entry, the same cannot be classified under any other service category to
raise demand of service tax. The said views have consistently been taken by the
Tribunal in the case of Dr. Lal Path Lab Pvt. Ltd. v. Commr. of C. & Ex., Ludhiana
(supra) as also by the Hon’ble High Court in case of Dr. Lal Path Lab Pvt. Ltd.
which has been reported in 2007 (8) S.T.R. 337 (P & H).
9. In view of above discussions, the impugned demand cannot be sus-
tained and hence, set aside and the appeal is allowed with consequential relief as
per law.
(Operative part of the order was pronounced in the open Court)

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GST LAW TIMES  18th June 2020  123