Page 165 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] NIRAJ PRASAD v. COMMISSIONER OF C. EX. & S.T., KANPUR 83
Over the point of payment of Service Tax in the appropriate category, I find
that the party has totally misconstrued the issue. I find that the services
provided by the party in this case were not the “Commercial Training and
Coaching service”, but as per the agreement, it was clear that the party was
arranging to provide services on behalf of M/s. Career Launcher for which
they were getting paid thus, the activities undertaken by the party were
squarely covered clause (vi) of the definition of “Business Auxiliary Ser-
vice”. Therefore, the party was liable to pay Service Tax under the category
of ‘Business Auxiliary Services’ on the amount received from their client. I
do not find any reason to agree with the contention of the party that de-
manding the tax from them will amount double taxation of same amount.
The tax already paid by M/s. Career Launcher in respect of “Commercial
Training and Coaching service” cannot be said to have been paid by the
party or on behalf of the party.”
9. Shri B.L. Narasimhan, Learned Counsel appearing for the appellant
has made the following submissions :-
(i) Revenue sharing agreement is not liable to Service Tax in lieu of the
Board Circular dated 23 February, 2009. Elaborating this submis-
sion, Learned Counsel submitted that the arrangement is such that
Career Launcher and appellant share the Revenue earned between
them and there is no element of provision of service from one party
to the other as both are striving towards a common goal. In support
of this submission, Learned Counsel placed reliance upon a decision
of the Mumbai Bench of the Tribunal in Mormugao Port Trust v.
Commissioner of Cus., C.Ex. & S.T., Goa [2017 (48) S.T.R. 69 (Tri. -
Mumbai)] as also the decision of the Supreme Court rendered in the
appeal filed by the Commissioner against the aforesaid decision of
the Tribunal [2018 (19) G.S.T.L. J118 (S.C.)];
(ii) Even if it is assumed that the service provided by the appellant is li-
able to Service Tax under “business auxiliary service”, then too, the
service is exempted under Notification dated 10 September, 2004;
(iii) It cannot be doubted that the service is in relation to education and
the view to the contrary taken by the Commissioner is not justified.
In support of this submission, Learned Counsel placed the defini-
tion of ‘education’ as contained in various dictionaries and also on
the decisions of the Tribunal in Sunbeam Infocomm Pvt. Ltd. v. Com-
missioner of Central Excise [2014 (8) TMI 783-CESTAT Mumbai = 2015
(37) S.T.R. 129 (Tri. - Mum.)] and Commissioner of C.Ex., Pune-III v.
Mitcon Consultancy & Engg. Services Ltd. [2017 (4) G.S.T.L. 167 (Tri. -
Mumbai)];
(iv) Requiring the appellant to pay Service Tax on “business auxiliary
service” would amount to double taxation inasmuch as Career
Launcher had paid tax on the entire amount recovered from the
students and in support of this submission, Learned Counsel placed
reliance upon a decision of the Tribunal in M/s. Samadhan Systems
Pvt. Ltd. v. Commissioner of C.Ex., Jaipur-I [Service Tax Appeal No.
1079 of 2011, decided on 9 January, 2018]; and

GST LAW TIMES  2nd July 2020  165