Page 173 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] NIRAJ PRASAD v. COMMISSIONER OF C. EX. & S.T., KANPUR 91
vice Tax on M/s. Unitel Education under “business auxiliary service” as it re-
ceived some portion of the fees deposited with Career Launcher. The Commis-
sioner (Appeals) observed as follows :-
“Thus, the amount of Rs. 3,45,18,649/- received by the appellant from M/s.
CLI, on which the department has demanded the Service Tax, is nothing
but a part of the entire transaction of Rs. 5,22,67,103/- on which the Service
Tax has already been paid by M/s. CLI. It is clear from the documents on
record that the service tax has been paid on the entire amount i.e. the tax to
be paid by M/s. CLI as well as by the appellant stands paid. It is also on
record that CLI have obtained centralized registration for payment of Ser-
vice Tax and the Professional Learning Centres at Agra & Bareilly were in-
cluded in the said centralized registration. I also find that it is not the case
of the department that M/s. CLI has not paid the Service Tax on the entire
fee collected at Agra & Bareilly centres. Keeping this in view the demand of
Service Tax on the same transaction under the category of ‘Business Auxil-
iary Service’ is not sustainable.”
36. This order, it has been stated, has attained finality and nothing to
the contrary has been pointed out by the Learned Authorized Representative of
the Department.
37. Once the Department permitted this order to attain finality, it can-
not, be permitted to urge that the appellant should be required to pay Service
Tax on “business auxiliary service”. Reliance can be placed on the decision of the
Supreme Court in Damodar J. Malpani in support of this issue and paragraphs
which deal with this contention are reproduced below :-
“3. It appears from the records that several letters were written by
the appellants to the Excise Authorities requesting that a sample of the ap-
pellants’ product may be chemically analysed at the appellants’ cost for the
purpose of determining whether the appellants’ product or process in any
way differed from the product and process of M/s. Chandulal K. Patel and
Company. However, the Excise Authority decided against the appellants
without heeding such request. On 4-8-88 a decision was taken by the Assis-
tant Collector to classify the appellants’ product under Tariff Heading
24.04. On 11-8-88 a sample of the appellants’ product was taken by the re-
spondents but returned within one week without testing on the ground that
the issue was being finalised by the Assistant Collector. In the appeal pre-
ferred to the collector, the appellants again raised the issue specifically that
the process followed by and the product of the appellants were identical
with that of M/s. Chandulal K.P. Patel and Company and that the appel-
lants product should be similarly classified under Heading 24.01. While
upholding the decision of the Assistant Collector, the Collector did not con-
sider this aspect of the matter at all. The point was again taken specifically
in the appellants’ appeal before the Customs, Excise and Gold (Control)
Appellate Tribunal. The Tribunal however dismissed the appeal and said :
“The appellants have stated that some of the manufacturers who
were producing similar goods, were not paying any excise duty on their
production. These matters are not before us and it is neither possible nor
desirable for us to deal with these matters. Suffice it to say that each and
every case has to be examined in the light of our above observations,
and it is for the competent Central Excise Officers to come to correct de-
cisions in consonance with the principles of uniformity, equity and jus-
tice”.
GST LAW TIMES  2nd July 2020  173