C/SCA/20748/2018 JUDGMENT IN HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20748 of 2018 With R/SPECIAL CIVIL APPLICATION NO. 7414 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MS. JUSTICE SANGEETA K. VISHEN 1 Whether Reporters of Local Papers may be YES allowed to see judgment? 2 To be referred to Reporter or not? NO 3 Whether their Lordships wish to see fair copy NO of judgment? 4 Whether this case involves substantial NO question of law as to interpretation of constitution of India, 1950 or any order made thereunder? SAHITYA MUDRANALAYA PRIVATE LIMITED THROUGH SHREYAS V PANDYA Versus ADDITIONAL DIRECTOR GENERAL Appearance: MS DISHA N NANAVATY(2957) for Petitioner(s) No. 1,2 MR ANKIT SHAH(6371) for Respondent(s) No. 1 MR DEVANG VYAS(2794) for Respondent(s) No. 2 MR NIRZAR S DESAI(2117) for Respondent(s) No. 3 CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Page 1 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT Date: 29/01/2020 ORAL JUDGMENT (PER: HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. learned senior standing counsel waive service of notice of rule on behalf of respective respondents forthwith. Since controversy involved in both these petitions is same, they were taken up for hearing together and are decided by this common judgment. 2. facts of case in Special Civil Application No. 20748 of 2018 are that first petitioner (hereinafter referred to as petitioner company ) is company incorporated under provisions of Companies Act and engaged in business of printing. second petitioner is Director of petitioner company. 2.1 Service tax was introduced in India for first time in 1994 under Chapter V of Finance Act, 1994 with effect from 1st July 1994, which came to be amended from time to time. Chapter V of Finance Act, 1994 has been omitted by section 173 of Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'the CGST Act'), which came into force from 1st July 2017. 2.2 petitioner company is registered with service tax department for payment of service tax on reverse charge mechanism since 15.07.2013. In course of its business, petitioner company has provided services in relation to examinations conducted by Maharashtra State Board of Secondary and Higher Secondary Education, Pune, Page 2 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT Maharashtra State Council of Examination, Pune, Gujarat Secondary and Higher Secondary Education Board, Gandhinagar and Gujarat Technological University, Ahmedabad (hereinafter referred to as 'Boards/University'). 2.3 It is case of petitioners that since services relating to examinations provided to educational institutions were exempted, no service tax was levied or leviable in relation thereto. Accordingly, no service tax was ever charged or paid by petitioners in reference to services provided by petitioners to above-referred institutions. 2.4 case of evasion of central excise duty was investigated by competent authority in relation to which panchnama was prepared on 04.09.2015. During course of said investigation, department had bifurcated bills of five years into various groups including one group of services rendered by petitioners. petitioners had furnished explanation regarding exemption of petitioner company s services from applicability of service tax by virtue of written statement dated 03.05.2017. Upon conclusion of inquiry, show-case notice dated 19.06.2017 with respect to excise duty only, was issued, and assessment order came to be passed, which is subject matter of appeal before competent authority. 2.5 During period when provisions of Chapter V of Finance Act, 1994 were in force, no show-cause notice was issued or was pending concerning liability of petitioner to pay service tax. After Chapter V of Finance Act, 1994 came to be omitted, petitioners have been served with Page 3 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT impugned show-cause notice dated 20.04.2018 purported to have been issued under section 73 of Finance Act, 1994 read with sections 142(8)(a) and 174 of CGST Act. 2.6 Being aggrieved, petitioners have filed present petition. 3. Insofar as facts of Special Civil Application No. 7414 of 2019 are concerned, first petitioner is partnership firm and is engaged in business of transportation and provides services as transport contractor. petitioner firm is registered with Service Tax Range, Mehsana Division, Commissionerate Ahmedabad-III under rent-a-cab service. petitioners provide vehicles for conduct of state examination in following Departments/Boards of Government of Gujarat: (i) Gujarat Secondary and Higher Secondary Education Board, Gandhinagar; (ii) Gujarat Technological University, Ahmedabad; (iii) Gujarat State Examination Board; and (iv) Gujarat Council of Educational Research and Training, Gandhinagar (GCERT). 3.1 In relation to such services, petitioner firm, as service provider, had paid service tax during period of 01.07.2013 to 30.09.2013. It is case of petitioners that since services provided to/by educational institution in respect of education by way of auxiliary education services, has been exempted from service tax vide Notification dated 25/2012-ST dated 28.06.2012 as amended, and since petitioner firm had paid service tax on its own, petitioner firm filed refund claim in relation to same. competent authority namely Assistant Commissioner, Central Excise and Page 4 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT Service Tax found that tax in reference was borne by assessee and not passed onto any one and further that services in reference were exempt. Accordingly, by order dated 01.10.2014, refund was allowed in favour of petitioner firm. Against said order, Department preferred appeal, wherein, appellate authority held that petitioner firm was eligible to refund; however, same was not allowed in terms of section 12C of Central Excise Act, 1944 as in opinion of authority, it would amount to unjust enrichment. It was, accordingly, directed that refund be credited to Consumer Welfare Fund in accordance with section 12C of Central Excise Act. 3.2 petitioners have challenged order passed by Commissioner (Appeals) before appellate Tribunal, which is pending consideration. 3.3 For period subsequent to 30.09.2013, petitioner firm availed of exemption in relation to services provided by it to educational institutions. service tax audit has been undertaken by Service Tax Audit Division and in said scrutiny, no query or objection was raised in respect of exemption of service tax availed by petitioner firm. 3.4 Thus, petitioner firm was not only assessed taking into consideration exemption as provided for services to educational institution, on adjudication, it was case of Department itself that petitioner firm was eligible for exemption under said category in relation to services provided by it to organisations referred hereinabove. Page 5 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 3.5 After Chapter V of Finance Act, 1994 came to be omitted, first respondent Senior Intelligence Officer, Director General of GST Intelligence, by communication dated 30.11.2017 initiated inquiry regarding short payment/non-payment of service tax for providing services by petitioner firm by considering recipients as educational institutes. said communication was, thereafter, followed by further communications. 3.6 By communication dated 15.12.2017, petitioners brought to notice of first respondent that services provided by petitioner firm are only to educational institutions and such services are exempted. It was also brought to notice of said respondent that Central Excise and Service Tax Audit-1 Commissioner had undertaken audit for period commencing from November 2010 to September 2015 and thereafter, from April 2015 to March 2017. audit report for first audit had since been provided and subsequent report was pending. 3.7 It is case of petitioners that without taking into consideration response submitted by them, first respondent addressed repeated communications to petitioners and sought various information in relation to selfsame period for which, audit was undertaken by competent authority. 3.8 By communication dated 04/05.04.2019, petitioners brought to notice of respondent authority that it has no authority to initiate any inquiry after omission of Chapter V of Finance Act, 1994 and prayed that inquiry Page 6 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT pursuant to communication dated 30.11.2017 be dropped. It is case of petitioners that during period when provisions of Chapter V of Finance Act, 1994 were in force, no show-cause notice was issued, nor was any inquiry pending concerning short/non-payment of service tax. It is case of petitioners that it was understanding of all concerned, including Department that institutions referred to hereinabove were educational institutions and persons providing services covered under exemption notification to such institutions were exempt from payment of service tax. petitioner firm had, accordingly, been assessed and found to be eligible for grant of refund. assessment, taking into consideration exemption, has been found to be in order in two audits undertaken by competent authority. According to petitioners, therefore, question of there being any short/non-payment of service tax would not arise. 3.9 By communication dated 04.04.2019, respondents have not acceded to representation made by petitioners and summoned petitioners to appear before them in furtherance of inquiry. Pursuant to summons, petitioners appeared before authority on 15.04.2019 and reiterated their stand as reflected in memorandum of petition. petitioners tendered their submissions on 15.04.2019 and thereafter, on 16.04.2019. On 24.04.2019, petitioners received show-cause notice dated 24.04.2019, purported to have been issued under section 73(1) of Finance Act, 1994 read with sections 142(8)(a) and 174 of CGST Act. Being aggrieved, petitioners have filed present petition challenging show-cause notice dated 24.04.2019. Page 7 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 4. At outset, Mr. Ankit Shah, learned Senior Standing Counsel for respondent raised preliminary objection to very maintainability of petition on ground that writ petition under article 226 of Constitution of India would not be maintainable before this court, more so, considering fact that question involved in case would have impact on determination of rate of duty and would, therefore, fall within ambit of section 35L of Central Excise Act, 1944, which provides for appeal against any order passed by Appellate Tribunal relating, among other things, to determination of any question having relation to rate of duty of excise or to value of goods for purposes of assessment, shall lie to Supreme Court. Since contention raised relates to very maintainability of petitioner, such contention needs to be dealt with at outset. 4.1 learned Senior Standing Counsel for respondents submitted that if show-cause notices were to culminate into orders-in-original, appeals would lie to Commissioner (Appeals) and then to Appellate Tribunal. It was submitted that since, dispute involved in these cases relates to determination of question having relation to liability to service tax of services provided by petitioners, in view of provisions of section 35L of Central Excise Act, appeal against order of Appellate Tribunal would lie before Supreme Court and not before High Court, and hence, this court would not enter into merits of case and would relegate petitioners to answer to show-cause notices. In support of such submission, learned senior standing counsel placed Page 8 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT reliance upon decision of Supreme Court in Union of India v. Coastal Container Transporters' Association, rendered on 26th February 2019 in Civil Appeal No. 2276 of 2019, wherein, court held thus: 7. In writ petition filed before High Court, preliminary objection was raised on behalf of appellant nos.2 and 3 with regard to maintainability of petition. Firstly, it was pleaded that as writ petition itself was directed against show cause notices, such petition was not maintainable. Secondly, on ground that as controversy relates to classification of services and even if show cause notices were to culminate into final order, appeal would lie before Supreme Court, as such, High Court, in exercise of writ jurisdiction, should refrain from entertaining petition which involves classification dispute. It was pleaded that it was not either case of lack of jurisdiction or case where principles of natural justice are violated, so as to entertain petition in which only show cause notices were challenged. 18. As we are not in agreement with view taken by High Court, in entertaining writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of parties. Having regard to contentions raised, it cannot be said that there are no factual disputes. Applicability of circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further classifiability of service rendered by particular assessee is to be considered with reference to facts of each case depending upon nature of service rendered and contract entered into. There cannot be any general declaration, as prayed for. judgment of this Court in case of Deputy Commissioner, Central Excise v. Sushil and Company, (2016) 13 SCC 223, also cannot be applied to facts of case on hand to come to conclusion that services rendered by respondents will fall in category of "goods transport Page 9 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT agency" but not "cargo handling service". In aforesaid judgment, contract was only for supply of labour and it was specific case of assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be "cargo handling service". 19. On other hand, we find force in contention of learned senior counsel, Sri Radhakrishnan, appearing for appellants that High Court has committed error in entertaining writ petition under Article 226 of Constitution of India at stage of show cause notices. Though there is no bar as such for entertaining writ petitions at stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at show cause notice stage. Neither it is case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain writ petition at stage of notice. High Court ought not to have entertained writ petition, more so, when against final orders appeal lies to this Court. judgment of this Court in case of Union of India v. Guwahati Carbon Ltd., (2012) 11 SCC 651, relied on by learned senior counsel for appellants also supports their case. In aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is serious dispute with regard to classification of service, respondents ought to have responded to show cause notices by placing material in support of their stand but at same time, there is no reason to approach High Court questioning very show cause notices. Further, as held by High Court, it cannot be said that even from contents of show cause notices there are no factual disputes. Further, judgment of this Court in case of Malladi Drugs & Pharma Ltd. v. Union of India, 2004 (166) ELT 153 (SC), relied on by learned senior counsel for appellants also supports their case where Page 10 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT this Court has upheld judgment of High Court which refused to interfere at show cause notice stage. 4.2 It was submitted that above decision would be squarely applicable to facts of present case and hence, this court may not entertain writ petition and may relegate petitioners to answer to show-cause notice. It was further submitted that case of Department is that services provided by petitioners do not fall in negative list; therefore, essentially, dispute is classification dispute. It was further submitted that contention that show-cause notice is conclusive in nature is incorrect as petitioners can put up their case before concerned authority, hence, petitioners be relegated to avail of statutory remedy. 5. On other hand, Mr. Mihir Joshi, Senior Advocate, and Mr. Mitul Shelat, learned counsel for petitioners, submitted that controversy involved in present case, does not involve classification dispute inasmuch as, classification of services provided by petitioners is not in dispute. What is required to be examined is whether parties to whom services have been provided by petitioners, viz. Boards and University are educational institutions. 5.1 Referring to contents of show-cause notices, it was pointed out that there are no disputed questions of fact and that, on basis of admitted facts, court is required to examine as to whether or not, Boards and University are educational institutions. If Boards and University are found to be educational institutions, services provided to Page 11 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT them are exempt. 5.2 Reliance was placed upon decision of Supreme Court in Deputy Commissioner Central Excise v. Sushil & Co., (2016) 13 SCC 223, wherein, court held thus: 3. respondent challenged this show-cause notice by filing writ petition in High Court inter alia, contending that no services were provided by respondent by entering into aforesaid contract, as it was only supplying labour and labour was not doing any work of packing, unpacking, loading and unloading of any cargo. High Court, by impugned judgment, has accepted plea of respondent, resulting into allowing writ petition and quashing show-cause notice. It is this judgment of High Court, validity of which is questioned by appellant Department in present appeal. 4. Before coming to issue at hand, we may record statement of Mr A.K. Sanghi, learned Senior Counsel appearing for appellant Department, that it was not appropriate for High Court to deal with said writ petition, bypassing adjudicatory machinery provided under Act, more so when statutory appeals against adjudication orders are also provided. However, we find that High Court has simply gone by contract in question, which was entered into between respondent and M/s. BirIa Corpn. Ltd. and taking into consideration all averments, which were made in show-cause notice, on basis of admitted facts, it has come to conclusion that even when allegations in show-cause notice are accepted, said contract does not amount to providing any Cargo Handling Service as defined under Entry 23 of Section 65 of Act. Therefore, we are of opinion that High Court did not commit any mistake or illegality in entertaining writ petition when no disputed questions of fact were involved and legal issue was to be decided on basis of facts, as admitted by parties, which were so specifically recorded by High Court itself. Page 12 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 5.3 Reliance was also placed upon decision of this court in Darshan Boardlam Ltd. v. Union of India, 2013 [287] ELT 401, wherein, on behalf of revenue contention had been raised that petition may not be entertained as impugned order under challenge is appealable under section 35G of Central Excise Act, 1944 before Appellate Tribunal; and that, under section 35G of said Act, appeal would not lie before this court but would directly lie before Supreme Court, which is suggestive of fact that legislature has thought it fit not to provide for appeal before High Court against order passed by Appellate Tribunal and if such is position, then no writ petition under article 226 of Constitution of India would be maintainable directly against order passed by Commissioner. Therefore, court should not entertain petition but should relegate petitioner to avail of alternative remedy of appeal. court referred to various decisions of Supreme Court as well as High Courts, including decision of Supreme Court in Union of India v. Guwahati Carbon Limited, 2012 [278] ELT 26, and bearing in mind principles of law enunciated in said decisions found that there were good grounds to overrule preliminary objection of revenue and proceeded to decide issues raised in petition. 5.4 It was submitted that decision of Supreme Court in Coastal Containers Transporters' Association, (supra) does not lay down that writ petition against show-cause notice is not maintainable in law. It was contended that judgment is peculiar to facts of that case wherein there were factual disputes; disputes regarding classification of Page 13 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT services rendered required consideration of facts of each case depending on nature of services rendered and contract entered into. 5.5 It was further submitted that decision of Supreme Court in Union of India v. Guwahati Carbon Limited (supra), would also not be applicable to facts of present case inasmuch as in that case, writ petition sought to challenge assessment order. Since, statutory appeal against order of Appellate Tribunal in proceedings arising from such order, lay before Supreme Court, it was held that writ petition ought not to have been entertained. 5.6 attention of court was drawn to contents of impugned show-cause notices (reference to which shall be made subsequently), to submit that impugned show-cause notices are more than simple show-cause notices inasmuch as there is conclusion therein as regards liability of petitioners. Reliance was placed upon decision of Supreme Court in Siemens Ltd. v. State of Maharashtra, (2006) 12 SCC 33, wherein, it has been held thus: 9. Although ordinarily writ court may not exercise its discretionary jurisdiction in entertaining writ petition questioning notice to show cause unless same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma, (1987) 2 SCC 179, Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 and Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28, but question herein has to be considered from different angle viz. when notice is issued with premeditation, writ petition would be maintainable. In such event, even if court directs statutory Page 14 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT authority to hear matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I. Shephard v. Union of India, (1987) 4 SCC 431.) It is evident in instant case that respondent has clearly made up its mind. It explicitly said so both in counter-affidavit as also in its purported show-cause notice. 10. said principle has been followed by this Court in V.C., Banaras Hindu University v. Shrikant, (2006) 11 SCC 42, stating: 48. Vice-Chancellor appears to have made up his mind to impose punishment of dismissal on respondent herein. post-decisional hearing given by High Court was illusory in this case. 49. In K.I. Shephard v. Union of India (supra) this Court held: It is common experience that once decision has been taken, there is tendency to uphold it and representation may not really yield any fruitful purpose. (See also Shekhar Ghosh v. Union of India, (2007) 1 SCC 331 and Rajesh Kumar v. D.C.I.T., (2007) 2 SCC 181) 11. bare perusal of order impugned before High Court as also statements made before us in counter-affidavit filed by respondents, we are satisfied that statutory authority has already applied its mind and has formed opinion as regards liability or otherwise of appellant. If in passing order respondent has already determined liability of appellant and only question which remains for its consideration is quantification thereof, same does not remain in realm of show-cause notice. writ petition, in our opinion, was maintainable. 5.7 Reference was made to decision of Supreme Page 15 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT Court in Oryx Fisheries (P) Ltd. v. Union of India, (2010) 13 SCC 427, wherein, it has been held thus: 27. It is no doubt true that at stage of show cause, person proceeded against must be told charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage authority issuing charge-sheet, cannot, instead of telling him charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, entire proceeding initiated by show-cause notice gets vitiated by unfairness and bias and subsequent proceedings become idle ceremony. 28. Justice is rooted in confidence and justice is goal of quasi-judicial proceeding also. If functioning of quasi-judicial authority has to inspire confidence in minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by language in which charges are couched and conveyed to person proceeded against. 29. In instant case from underlined* portion of show-cause notice it is clear that third respondent has demonstrated totally closed mind at stage of show-cause notice itself. Such closed mind is inconsistent with scheme of Rule 43 which is set out below. aforesaid Rule has been framed in exercise of power conferred under Section 33 of Marine Products Export Development Authority Act, 1972 and as such that Rule is statutory in nature. 30. Rule 43 of MPEDA Rules provides as follows: 43. Cancellation of registration. Where Secretary or other officer is satisfied that any person has obtained certificate of registration by furnishing incorrect information or that he has contravened any of provisions of this rule or of conditions mentioned in certificate of registration, or any person who has been registered Page 16 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT as exporter fails during period of twelve consecutive months to export any of marine products in respect of which he is registered, or if Secretary or other officer is satisfied that such person has become disqualified to continue as exporter, Secretary or such officer may, after giving person who holds certificate reasonable opportunity of making his objections, by order, cancel registration and communicate to him copy of such order. 31. It is of course true that show-cause notice cannot be read hypertechnically and it is well settled that it is to be read reasonably. But one thing is clear that while reading show-cause notice person who is subject to it must get impression that he will get effective opportunity to rebut allegations contained in show-cause notice and prove his innocence. If on reasonable reading of show-cause notice person of ordinary prudence gets feeling that his reply to show-cause notice will be empty ceremony and he will merely knock his head against impenetrable wall of prejudged opinion, such show-cause notice does not commence fair procedure especially when it is issued in quasi-judicial proceeding under statutory regulation which promises to give person proceeded against reasonable opportunity of defence. 32. Therefore, while issuing show-cause notice, authorities must take care to manifestly keep open mind as they are to act fairly in adjudging guilt or otherwise of person proceeded against and specially when he has power to take punitive step against person after giving him show-cause notice. 33. principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such proceeding has to inspire confidence in mind of those who are subject to it. 34. somewhat similar observation was made by this Court in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182. In that case, this Court was dealing with show-cause notice-cum-charge-sheet Page 17 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT issued to employee. While dealing with same, this Court in para 25 by referring to language in show-cause notice observed as follows: 25. Upon consideration of language in show-cause notice-cum-charge-sheet, it has been very strongly contended that it is clear that officer concerned has mindset even at stage of framing of charges and we also do find some justification in such submission since chain is otherwise complete. After para 25, this Court discussed in detail emerging law of bias in different jurisdictions and ultimately held in para 35, true test of bias is: 35. test, therefore, is as to whether mere apprehension of bias or there being real danger of bias and it is on this score that surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom in event however conclusion is otherwise inescapable that there is existing real danger of bias, administrative action cannot be sustained: (emphasis supplied) 35. Going by aforesaid test any man of ordinary prudence would come to conclusion that in instant case alleged guilt of appellant has been prejudged at stage of show-cause notice itself. 5.8 Reference was also made to contents of affidavit- in-reply filed on behalf of respondents, wherein there are categorical averments to effect that GSEB, GTU, MSEB and MSCE do not qualify as educational institutions; that services provided by petitioners to Boards/University are not services specified in section 66D(l) of Finance Act, 1994; and that services provided by petitioners are not exempt under serial No. 9 of Mega Exemption Notification Page 18 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT No.25/2012-ST dated 20.06.2012 as amended. It was submitted that considering conclusive nature of show- cause notices which is further supported by affidavits-in- reply filed in these cases, it is evident that respondents have already determined liability of petitioners and, therefore, matters do not remain in realm of show- cause notices; authority has predetermined issue and hence, there exists real danger of bias, and therefore, also writ petitions under article 226 of Constitution of India are maintainable. 6. In aforesaid backdrop, reference may be made to section 35L of Central Excise Act, 1944, which provides for appeal to Supreme Court and section 35G of said Act which provides for appeal to High Court, which are extracted herein below for ready reference: 35-L. Appeal to Supreme Court. (1) appeal shall lie to Supreme Court from (a) any judgment of High Court delivered (i) in appeal made under section 35-G; or (ii) on reference made under Section 35-G by Appellate Tribunal before 1st day of July, 2003; (iii) on reference made under section 35-H, in any case which, on its own motion or on oral application made by or on behalf of party aggrieved, immediately after passing of judgment, High Court certifies to be fit one for appeal to Supreme Court; or (b) any order passed before establishment of National Tax Tribunal by Appellate Tribunal relating, among other things, to determination of any question having relation to rate of duty of excise or to Page 19 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT value of goods for purposes of assessment. (2) For purposes of this Chapter, determination of any question having relation to rate of duty shall include determination of taxability or excisability of goods for purpose of assessment. 35G. Appeal to High Court (1) appeal shall lie to High Court from every order passed in appeal by Appellate Tribunal on or after 1st day of July, 2003 (not being order relating, among other things, to determination of any question having relation to rate of duty of excise or to value of goods for purposes of assessment) if High Court is satisfied that case involves substantial question of law. 6.1 Thus, against order passed by Appellate Tribunal, appeal lies to High Court; however, order which is subject matter of challenge should not relate to determination of any question having relation to rate of duty of excise or to value of goods for purposes of assessment. Since classification of goods or services has direct relation with rate of duty, appeal against order of Appellate Tribunal relating to classification dispute would also lie before Supreme Court and not High Court. 6.2 Since appeal against matter which relates to determination of question having relation to rate of duty or value of goods for purposes of assessment lies to Supreme Court and not to High Court, this court ordinarily, would not entertain such dispute in exercise of powers under article 226 of Constitution of India. 6.3 first question that therefore needs to be examined is Page 20 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT whether dispute involved in present cases is classification dispute. 6.4 dispute can be said to be classification dispute provided it involves question regarding entry under which particular goods or services fall. In present cases, insofar as nature of services is concerned, there is no dispute. question involved in these cases is whether institutions to which services are supplied by petitioners are educational institutes. In opinion of this court, question as to whether institution is educational institution or not, is strictly speaking, not classification dispute. 6.5 Moreover, in both these cases there is no dispute on facts. On perusal of impugned show-cause notices, it is apparent that based on admitted facts, only dispute raised is purely legal issue, namely, whether institutions to which services are supplied by petitioners are educational institutions. Moreover, relevant material on basis of which such question can be decided is already on record. 6.6 This court is of view that decision of Supreme Court in Union of India v. Coastal Container Transporters Association, (supra) would not be applicable to facts of present cases, inasmuch as, in that case court had firstly found that dispute involved in case was classification dispute; and secondly, that even from contents of show-cause notices, it could not be said that there are no factual disputes; whereas present cases do Page 21 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT not involve any classification dispute, nor do they involve any disputed questions of fact. 6.7 In Deputy Commissioner Central Excise v. Sushil & Co., (supra) on which reliance has been placed on behalf of petitioners, Supreme Court held thus: we find that High Court has simply gone by contract in question, which was entered into between respondent and M/s Birla Corpn. Ltd. and taking into consideration all averments, which were made in show-cause notice, on basis of admitted facts, it has come to conclusion that even when allegations in show-cause notice are accepted, said contract does not amount to providing any Cargo Handling Service as defined under Entry 23 of Section 65 of Act. Therefore, we are of opinion that High Court did not commit any mistake or illegality in entertaining writ petition when no disputed questions of fact were involved and legal issue was to be decided on basis of facts, as admitted by parties, which were so specifically recorded by High Court itself. 6.8 In facts of present cases, this court is required to examine legal issue, viz. as to whether on allegations made in show-cause notices, institutions to which services have been provided by petitioners are educational institutions; and no disputed questions of fact are involved. In these circumstances, contention that these petitions under article 226 of Constitution of India are not maintainable before High Court does not merit acceptance. 6.9 Reference may also be made at this stage to contents of show-cause notice dated 20.04.2018 issued to petitioners in Special Civil Application No. 20748 of 2018, relevant part whereof, are extracted hereunder: Page 22 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 6.9.1 In last sub-paragraph of paragraph 7.5.2 of show- cause notice, it has been stated thus: Truly, it needs to be examined as to whether Boards/University viz. to (i) Gujarat State Education Board, (ii) Gujarat Technological University, (iii) Maharashtra State Education Board and (iv) Maharashtra State Council fall under definition of Educational Institution or not. 6.9.2 In context of above, in paragraph 7.5.3 of show-cause notice, it has been stated thus: 7.5.3. In order to ascertain same, some of important functions performed by these Boards/ University and definitions as mentioned under their acts of Incorporation have been taken into consideration. 6.9.3 Thereafter reference has been made to powers and duties performed by Gujarat Secondary and Higher Secondary Education Board under Gujarat Secondary Education Act, 1972, objects of University under Gujarat Technological University Act, 2007; powers and duties of Maharashtra State Council of Examination under Maharashtra State Council of Examinations Act, 1998; and powers and duties of Maharashtra Secondary and Higher Secondary Education Boards under Maharashtra Secondary and Higher Secondary Education Boards Act, 1965. 6.9.4 In paragraphs 7.6.1 and 7.6.2 of show-cause notice, following findings have been recorded: 7.6.1 Further on examining functions and duties of above said Boards/University it appears that these Page 23 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT Boards/University are functioning as organizations which are entrusted with work of creating more schools/colleges/institutes under their affiliation, to prepare syllabus of education for such institutes, to conduct academic tests and exams, to appoint examiners / supervisors for smooth conduct of examination, to declare results of such examinations etc. On broader aspect these University/Boards work more like managerial organization to plan syllabus of education and conduct of examination for institutes affiliated under them. For this purpose, Boards/University procure services of other service providers for such examination related and result processing services. On careful reading of definitions of educational institutions as given under Finance Act, 1994 and comparing it with functions and duties of (i) GSEB (ii) GTU (iii) MSEB and (iv) MSCE suggest that their institution do not appear to qualify as educational institutions. M/s. SMPL is engaged in providing such services to these Boards/University and is receiving consideration against such services from them. However, it appears that with intention to evade payment of service tax, they have misstated these organizations as Educational Institutions to claim incorrect and ineligible exemption on their liability of payment on service tax on gross consideration received from these Boards/University for services provided to them. 7.6.2 It also appears that even before insertion of definition of educational institution vide Notification No. 06/2014-ST dated 11.07.2014, (i) GSEB (ii) GTU (iii) MSEB and (iv) MSCE were not educational institutions as per definition of educational institutions under Section 2(b) of Gujarat Educational Institutions (Management) Act, 1976 as described in para 7.5.3.5 and 7.5.3.6 above. 6.9.5 In last sub-paragraph of paragraph 7.7.2, it has been recorded thus: It is relevant to note that not all Universities or such like Page 24 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT institution have Departments, Faculties and Students on their roll for imparting education. service receiving institutions in this present case are merely entrusted with task of affiliation and preparation of guidelines for institutes registered/affiliated under them. These institutes are different from University stated in case law by fact that these University/Boards are neither equipped with nor mandated to have on board faculty, Departments and Students under their roll for imparting education directly to their students. Hence, claim of M/s SMPL to avail exemption relying on said case law does not seem sustainable. 6.9.6 In show-cause notice reference is made to replies received from aforesaid institutes as regards whether they are educational institutions. After considering replies, in paragraph 7.14 of show-cause notice, it has been recorded that none of Boards/University are involved in providing any services by way of (i) pre-school education up to higher secondary or equivalent, or (ii) education as part of curriculum for obtaining qualification recognized by any law for time being in force, or (iii) education as part of approved vocational education course. Therefore, they do not appear to be educational institutions as per definition in Finance Act, 1994. Therefore, claim of exemption from payment of service tax by M/s Sahitya Mudranalaya Private Limited, Ahmedabad for providing services to such Boards/University considering them as educational institute does not seem sustainable. 6.9.7 In paragraph 8 of said show-cause notice, after going through statements and documents submitted by petitioner, it is recorded that it is service provider who is engaged in providing of taxable services, viz. result processing and other pre and post examination related services, which Page 25 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT appear to be taxable under statutory provisions mentioned thereunder. Reference is made to section 66B of Finance Act, 1994 and it is recorded that since said services do not figure in negative list provided under section 66D specifically clause (l) and are not exempted services under Notification No. 25/2012 dated 20.06.2012, said services continue to be taxable under Finance Act, 1994. 6.10 Thus, categorical conclusive findings have been recorded in show-cause notice after considering submissions of petitioner and respective Boards/University. Similar conclusive findings have also been recorded in show cause notice issued to M/s Rajan Travels, petitioner in Special Civil Application No.7414 of 2019. Under circumstances, issuance of impugned show-cause notices is merely empty formality, inasmuch as issues raised therein already stand concluded by virtue of findings recorded in show- cause notices. 6.11 Supreme Court, in Seimens Ltd. v. State of Maharashtra (supra), has held that when notice is issued with premeditation, writ petition would be maintainable. In such event, even if court directs statutory authority to hear matter afresh, ordinarily such hearing would not yield any fruitful purpose. 6.12 In Oryx Fisheries Private Limited v. Union of India, (supra), Supreme Court has inter alia held that if on reasonable reading of show-cause notice, person of ordinary prudence gets feeling that his reply to show- cause notice will be empty ceremony and he will merely Page 26 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT knock his head against impenetrable wall of prejudged opinion, such show-cause notice does not commence fair procedure especially when it is issued in quasi-judicial proceeding under statutory regulation which promises to give person proceeded against reasonable opportunity of defence. 6.13 In present cases, perusal of impugned show- cause notices clearly shows that authority concerned has given conclusive findings on all issues on which show- cause notices have been issued. principles enunciated in above decisions would, therefore, be squarely applicable to facts of present case. Therefore, on this ground also, present writ petition under article 226 of Constitution of India is maintainable. 7. Before adverting to merits of rival submissions with respect to impugned show-cause notices , it may be noted that learned counsel for petitioners have contended that respondents have no authority to issue impugned show-cause notices as there is no authority under section 73(1) of Finance Act, 1994 to initiate proceedings because after repeal of Chapter V of Finance Act, 1994 by Central Goods and Services Tax Act, 2017, there is no power to initiate any fresh proceedings under repealed Act, that is Chapter V of Finance Act, 1994. Since question of jurisdiction has been raised, which goes to root of matter, it needs to be answered first. 7.1 Mr. Mihir Joshi and Mr. Mitul Shelat, learned counsel for petitioners, submitted that respondent authority has Page 27 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT no jurisdiction to initiate fresh proceedings after omission of Chapter V of Finance Act (on 20.04.2014); and after deletion of Entries 92 and 92C in 7 th Schedule (List 1 Union List) (by Constitution (101st Amendment) 2016, dated 16.09.2016). It was submitted that section 174(2)(e) of CGST Act does not authorise initiation of fresh/de novo investigation, inquiry and is restricted to continuation of such investigation, inquiry, verification, which are pending on date of repeal. It was submitted that since no proceedings were initiated under Chapter V during time when it was in force, section 174 of CGST Act does not authorise initiation of any proceedings under Chapter V of Finance Act, which has been omitted. It was submitted that impugned show- cause notice is, therefore, without authority and jurisdiction and hence, proceedings pursuant to impugned show- cause notices are required to be dropped. 7.2 On other hand, Mr. Ankit Shah, learned Senior Standing Counsel for respondents submitted that authorities are exercising powers under Chapter V of Finance Act, 1994, read with section 174(2)(e) of CGST Act. It was submitted that petitioners have referred exclusively to provisions of section 173 of CGST Act whereby, Chapter V of Finance Act, 1994 has been omitted without referring to provisions of section 174 of CGST Act. In this regard, attention of court was invited to savings clause contained in section 174(2)(e). Reliance was placed upon decision of Gauhati High Court in writ petition (C) No. 2059 of 2018 in case of Laxmi Narayan Sahu v. Union of India and others, wherein, court has held thus: Page 28 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 28. In other words, proposition laid, down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) is that continuance of further proceeding under omitted Act depends upon as to whether savings clause is provided in enactment by which earlier enactment was omitted. In instant case, it is taken note of that provisions of Chapter V of Finance Act of 1994 were omitted" by Section 173 of CGST Act of 2017, where Section 173 is under heading of Amendment of Act 32 of 1994'. Section 174 of said Act which is under heading of 'Repeal and Saving, in Sub-Section 1 provides that save and otherwise provided in Act, on and from date of commencement, portion of Central Act of 1994, Medicinal and, Toilet Preparation (Excise Duties) Act 1955, Additional Duties of Excuse (Goods of Special Importance) Act 1957, Additional Duties of Excise (Textiles and Textile Articles) Act and Central Excise Tariff Act, 1985 stood repeated. 29. But Section 174(2) of CGST Act of 2017 provides that repeal of said Acts and amendment of Finance Act of 1994 (Act 32 of 1994) to extent mentioned in Section 174(1) or 173, as case may he, shall not, amongst others, effect any investigation, enquiry or verification (including scrutiny and audit), assessment proceedings, adjudication or any other legal proceeding or recovery of arrears etc., and" all such proceedings may be instituted, continued or enforced as if Act had not been so amended or repealed. 30. Constitution Bench of Supreme Court in Kolhapur Canesugar Works Ltd (supra) had also referred and followed earlier pronouncement of Constitution Bench in Rayala Corporation (P) Ltd (supra) and, therefore, proposition laid down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) can either be clarification or it can be argued to be in conflict with pronouncement in paragraph 17 of Rayala Corporation (P) Ltd (supra). Even if it is taken to be conflict, but decision having been rendered by Bench of equal strength, proposition that is more appealing is to be taken into consideration. proposition in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) providing that proceedings under omitted enactment continues Page 29 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT to remain in event of there being savings clause in enactment bringing about such omission appears to be more appealing that proposition in Rayala Corporation (P) Ltd (supra) providing for discontinuance of such proceeding. 31. As provisions of Section 174(2) also is clearly applicable in respect of omission of enactment under Section 173, therefore, any such investigation, enquiry, etc', that was instituted, continued or enforced under Chapter V of Finance Act of 1994, continues to remain in place in spite of such omission of Chapter V of Finance Act. In other words, Section 174(2)(e) is savings clause in respect of any investigation, enquiry etc., that was/ to be instituted under Chapter V of Finance Act of 1994. conjoint reading of Section 173 and 174(2)(e) would show that while bringing omission to provision of Chapter V of Finance Act of 1994, savings clause for continuing with proceedings initiated/ to be initiated was also duly provided. Existence of savings clause in respect of omission of Chapter V of Finance Act of 1994 clearly brings it within purview of provisions laid down by Constitution Bench of Supreme Court in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra). 32. As already elucidated hereinabove, paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) provides that if statute stood omitted with savings clause, savings clause would not render it impermissible for proceedings initiated/ to be initiated under Chapter V of Finance Act of 1994, which stood omitted by Section 173 of CGST Act of 2017 to be continued. 33. conjoint reading of provisions laid down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) and Section 173 and 174(2)(e) would lead to conclusion that although Chapter V of Finance Act of 1994 stood omitted under Section 173, but savings clause provided under Section 174(2)(e) will enable continuation of investigation, enquiry, verification etc., that were made/ to be made under Chapter V of Finance Act of 1994. 34. In view of such conclusion, we find writ petition to be devoid of any merit and relief sought for Page 30 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT interfering with demand-cum-show cause notices of various dates issued by Assistant Commissioner Central Goods and Service Tax of different districts would have to stand rejected. Accordingly, writ petitions stand dismissed. 7.3 It was submitted that in terms of above decision of Gauhati High Court, although Chapter V of Finance Act, 1994 stood omitted under section 173 of CGST Act, but savings clause provided under section 174(2)(e) of CGST Act will enable continuation of investigation, inquiry, verification etc. that were made/to be made under Chapter V of Finance Act. It was, accordingly, submitted that petitioners are not justified in contending that respondents have no jurisdiction or authority in law to issue impugned show-cause notice. 7.4 Section 173 of CGST Act reads as under: 173. Amendment of Act 32 of 1994.- Save as otherwise provided in this Act, Chapter V of Finance Act, 1994 shall be omitted. 7.5 Thus, by virtue of section 173 of CGST Act, Chapter V of Finance Act, 1994, which makes provision for service tax, came to be omitted. 7.6 Section 174 of CGST Act reads as under: 174. Repeal and saving. (1) Save as otherwise provided in this Act, on and from date of commencement of this Act, Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of Union List of Seventh Schedule to Constitution), Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), Additional Page 31 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), and Central Excise Tariff Act, 1985 (5 of 1986) (hereafter referred to as repealed Acts) are hereby repealed. (2) repeal of said Acts and amendment of Finance Act, 1994 (32 of 1994)(hereafter referred to as such amendment or amended Act , as case may be) to extent mentioned in sub-section (1) or Section 173 shall not (a) revive anything not in force or existing at time of such amendment or repeal; or (b) affect previous operation of amended Act or repealed Acts and orders or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under amended Act or repealed Acts or orders under such repealed or amended Acts: Provided that any tax exemption granted as incentive against investment through notification shall not continue as privilege if said notification is rescinded on or after appointed day; or (d) affect any duty, tax, surcharge, fine, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed against provisions of amended Act or repealed Acts; or (e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, Page 32 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed; (f) affect any proceedings including that relating to appeal, review or reference, instituted before on, or after appointed day under said amended Act or repealed Acts and such proceedings shall be continued under said amended Act or repealed Acts as if this Act had not come into force and said Acts had not been amended or repealed. (3) mention of particular matters referred to in sub-sections (1) and (2) shall not be held to prejudice or affect general application of Section 6 of General Clauses Act, 1897 (10 of 1897) with regard to effect of repeal. 7.7 Thus, by virtue of section 173 of CGST Act, Chapter V of Finance Act, 1994 stands omitted. Sub-section (2) of section 174 of CGST Act provides that amendment of Finance Act, 1994 shall not - (e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed. 7.8 Thus, clause (e) of sub-section (2) of section 174 of Page 33 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT CGST Act provides for institution of investigation, inquiry, verification, assessment proceedings, adjudication and other legal proceedings as if Finance Act, 1994 has not been so amended. Therefore, even after omission of Chapter V of Finance Act, 1994, by virtue of clause (e) of sub-section (2) of section 174 of CGST Act, authority is authorised to institute any legal proceeding under said Act. contention that authority does not have authority to initiate fresh proceedings after omission of Chapter V of Finance Act, therefore, does not merit acceptance. 8. Adverting to merits of case, Mr. Mihir Joshi, learned counsel for petitioners in Special Civil Application No. 20748 of 2018 raised two fold contentions. first contention was that services provided by petitioners to Maharashtra State Council of Examination, Pune, Maharashtra State Board of Secondary and Higher Secondary Education, Gujarat Secondary and Higher Secondary Education Board, Gandhinagar and Gujarat Technological University, Ahmedabad are exempted from service tax; and second contention was that respondent authorities are not justified in invoking extended period of limitation. 8.1 Elaborating on first ground, learned counsel submitted that petitioners have provided services in nature of examination related activities like bar code scanning, printing, OMR scanning, data entry etc. to aforesaid organisations. Serial No. 9 of Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 exempted from service tax services by way of (a) auxiliary education services to educational institution . Notification No. 3 of 2013 dated Page 34 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 01.03.2013 substituted for words, provided to or by educational institution with words provided to educational institution. Reference was made to Notification No.6 of 2014 dated 11.07.2014 whereby, Entry 9 came to be substituted as under: 9. Services provided,- (a) by educational institution.... (b) to educational institution by way of: (i) transportation of students, faculty and staff; (ii) .... (iii) .... (iv) services relating to admission to or conduct of examination by such institution. It was pointed out that in said notification; clause (oa) was introduced defining educational institution to mean institution providing services specified in clause (l) of section 66D of Finance Act, 1994 . 8.2 Reference was made to clause (l) of section 66D of Finance Act, 1994 as well as substituted clause (oa), which came to be substituted by Notification No.9 of 2016-ST dated 01.03.2016. 8.3 attention of court was invited to various notifications/circulars issued from time to time, reference to which, shall be made at appropriate stage. 8.4 It was submitted that sole ground on which exemption is sought to be denied to petitioners is that service recipients are not educational institutions. It was submitted that service recipients are educational Page 35 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT institutions as authority itself has identified nature of functions and duties being performed by service recipients and noticed that service recipients are involved in prescribing syllabus, conducting examination and awarding qualifications. Each of these functions is integrally associated with education and recipients would, therefore, clearly come within purview of term educational institutions . In support of such submission, learned counsel placed reliance upon decision of Supreme Court in Gujarat University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703, wherein, court has held that expression education is of wide import and includes all matters relating to imparting and controlling education. Reliance was also placed upon decision of Supreme Court in case of P. A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, wherein, court has held thus: 81. Education according to Chambers Dictionary is bringing up or training; strengthening of powers of body or mind; culture . 82. In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edn., 2005, Vol. 2) education" is defined in very Wide terms. It is stated: Education is bringing up; process of developing and training powers and capabilities of human beings. In its broadest sense word comprehends not merely instruction received at school, or college but whole course of training moral, intellectual and physical; is not limited to ordinary instruction of child in pursuits of literature. It also comprehends proper attention to moral and religious sentiments of child. And it is sometimes used as synonymous with learning . 83. In Sole Trustee, Lok Shikshana Trust v. CIT, (1976) 1 Page 36 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT SCC 254, term education" was held to mean: systematic instruction, schooling or training given to young in preparation for work of life. It also connotes whole course of scholastic instruction which person has received. What education connotes is process of training and developing knowledge, skill, mind and character of students by formal schooling. 84. In India Vision - 2020 published by Planning Commission of India, it is stated (at p. 250): Education is important input both for growth of society as well as for individual. Properly planned educational input can contribute to increase in gross national products, cultural richness, build positive attitude towards technology and increase efficiency and effectiveness of governance. Education opens new horizons for individual, provides new aspirations and develops new values. It strengthens competencies and develops commitment. Education generates in individual critical outlook on social and political realities and sharpens ability to self- examination, self-monitoring and self-criticism. 8.5 Reference was made to decision of Supreme Court in case of Nidhi Kaim v. State of M.P., (2016) 7 SCC 615, for proposition that examination is considered as common tool around which entire education system revolves. 8.6 Reference was also made to decision of Supreme Court in State of T.N. v. K. Shyam Sunder, (2011) 8 SCC 737, which emphasizes importance of common curriculum and prescription thereof as integral and essential requirement of education. Page 37 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 8.7 Reliance was also placed upon decision of Orissa High Court in Secondary Board of Education, Orissa v. Income Tax Officer, Ward E , Cuttack, [1972] 86 ITR 408. 8.8 It was submitted that Supreme Court as well as different High Courts have considered nature and functions being discharged by Boards and authorities constituted by State Government and have held them to be educational institutions and petitioners are entitled to claim exemption under Serial No.9 of Mega Exemption Notification No.25/2012-ST dated 20.06.2012. 8.9 Reference was made to order dated 23.08.2018 passed by Gujarat Authority for Advance Ruling, Goods and Services Tax, being Advance Ruling No. GUJ/GAAR/R/2018/16, to submit that authority, while considering question of exemption in relation to examination related services provided by M/s. Edutest Solutions Private Limited, to same service recipients, has held that services provided of printing of questions papers for conduct of examination by such institutions would be covered by Serial No.66 of Notification No. 12/2017, as amended. It was pointed out that institutions referred to in sub-clause (2) are also described in paragraph 2 of order and petitioners are also providing similar services to same service recipients. It was submitted that principle of law regarding availability of exemption to such services provided to such institutions should, therefore, be followed in case of petitioners also. 8.10 As regards second contention with regard to Page 38 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT invocation of extended period of limitation, learned counsel for petitioners submitted that respondents themselves believed that services provided by petitioners are services provided to educational institutions and therefore, exempt. respondents had issued circular dated 19.09.2013 expressly declaring that such services provided to educational institutions are exempt. Such understanding of respondents is also reflected in notification dated 26.07.2018. It was submitted that when respondents had themselves conveyed that service in question was not taxable service, they are not justified in invoking extended period of limitation. It was urged that there is no suppression on part of petitioners and that insofar as fraud and suppression are concerned, particulars of such fraud or suppression have to be set out in show cause notice inasmuch as invocation of larger period of limitation is jurisdictional issue, in absence of which it is not permissible for respondents to invoke larger period of limitation. 8.11 It was, accordingly, urged that petitions deserve to be allowed by setting aside impugned show-cause notice and any proceedings undertaken pursuant thereto. 9. Mr. Mitul Shelat, learned advocate for petitioners in Special Civil Application No. 7414 of 2019, reiterated submissions advanced by Mr. Joshi. It was submitted that impugned notice seeks to invoke extended period of limitation in respect of period from 01.10.2013 to 31.03.2016; however, impugned notice does not disclose any finding of existence of jurisdictional fact namely that duty has not been Page 39 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT paid by reasons of either fraud or collusion or willful misstatement or suppression of facts or contravention of any provisions of Act or rules made thereunder with intent to evade payment of duty. It was submitted that it is well settled that there has to be something positive other than mere failure to disclose transaction and pay tax thereon before assessee is saddled with any liability. It was submitted that it is equally well settled that when assessee is guided by action of authority itself, it is impermissible for department to invoke extended period of limitation. It was submitted that in present case, authority was well aware and has itself found that services provided by petitioners to service recipients are exempted services. This is pursuant to adjudication up to level of Commissioner (Appeals). Even, in course of audit undertaken for period for which, notice has been issued, no error has been found in action of petitioners in availing exemption. It was contended that, therefore, it is impermissible to invoke extended period of limitation. 9.1 Next it was submitted that show-cause notice suffers from non-application of mind on part of authority, inasmuch as, it is held that Gujarat Technological University is body corporate in terms of section 3(4) of Gujarat Technological University Act and, consequently, it has been held that service tax liability in relation to services provided does not rest upon petitioner. It was submitted that Gujarat Secondary and Higher Secondary Education Board is constituted under Gujarat Secondary and Higher Secondary Act, 1972. Board is also body corporate under section 3 of Gujarat Secondary and Higher Page 40 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT Secondary Act, 1972 and has perpetual succession and common seal. Similarly, Gujarat Council of Educational Research and Training (GCERT) and Gujarat State Examination Board (GSEB) are both, body corporates, each of them being society registered under Societies Registration Act, 1860. It was submitted that, having held that petitioner is not liable in relation to service tax for services provided to service recipients who are body corporate, respondent could not have held petitioner liable to pay service tax in relation to other service recipients who were also body corporates. 9.2 It was pointed out that authority itself has held that services provided by petitioner to service recipients is exempted service under Notification No.25/2012 dated 20.06.2012 and has, accordingly, held that petitioners are not liable to pay service tax on rent-a-cab services with effect from 01.07.2012. authority has further directed refund of tax paid subject to fulfillment of requirements under section 11B of Central Excise Act as made applicable to service tax. This finding is confirmed by Commissioner of Central Excise (Appeals). It was pointed out that having held that service tax in question was exempted and service tax paid is eligible for refund, Commissioner (Appeals) did not allow petitioner to retain refund as it would amount to unjust enrichment, which decision has been accepted by Department. order directing recovery of refund is challenged by petitioner before Tribunal. It was contended that having accepted that services provided by petitioners to service recipient is exempted service under Notification No.25/2012 Page 41 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT dated 20.06.2012, respondent authority has no jurisdiction to issue subject notice alleging non-payment of service tax in relation to selfsame services provided to selfsame recipients during period of selfsame notification. 9.3 It was accordingly urged that petition deserves to be allowed in terms of reliefs prayed for. 10. Opposing petitions, Mr. Ankit Shah, learned Senior Standing Counsel for respondents, invited attention of court to services covered under negative list of services as contained in section 66 of Finance Act, 1994, to submit that services that are provided thereunder that fall within negative list of services. It was contended that services provided by petitioners for various examination related services to State Education Board, State Technological University and State Council of Examination, do not fall within scope and ambit of clause (l) of section 66D of Finance Act, 1994, and hence, such services are taxable with effect from 01.07.2012. 10.1 It was submitted that on careful reading of clause (l) of section 66D of Finance Act, 1994, it is evident that only services provided as (i) pre-school education and education up to higher secondary or equivalent; or (ii) education as part of qualification recognized by any law for time being in force; or (iii) education as part of approved vocational course are non-taxable by virtue of negative list. It was submitted that it is case of petitioners that they provided auxiliary services as defined under clause (f) of definition provided in Mega Exemption Notification No. 25/2012-ST dated Page 42 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 20.06.2012 to Boards/University. It was submitted that petitioners would be entitled to exemption in respect of auxiliary educational services provided such services are provided to educational institutions, whereas, Boards/University to whom services have been provided by petitioners do not fall within ambit and scope of educational institution . It was submitted that only those entities would be qualified under term educational institution which provide services which have been referred to hereinabove. 10.2 Reference was made to averments made in affidavit-in-reply filed on behalf of respondents, wherein it is stated that as per functions and duties of Boards/University referred to therein, it is observed that they are functioning as organisations which are entrusted with work of creating more schools/colleges/institutes under their affiliation, to prepare syllabus of education for such institute, to conduct academic tests and exams, to appoint examiners/ supervisors for smooth conduct of examinations, to declare results of such examinations etc. It was contended that Boards/ University work more like managerial organisation to plan syllabus of education and conduct of examination for institutes affiliated under them and it is for this purpose, that Boards/University procure services of other service providers for such examination related and result processing services. It was submitted that considering ambit of section 66D (l) as well as definition of educational institution as defined under clause (oa) of Mega Exemption Notification, organisations to which services have been provided by petitioners, do not qualify Page 43 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT as educational institutions. 10.3 Insofar as invocation of extended period of limitation is concerned, attention of court was invited to contents of impugned show-cause notices, to submit that foundation was duly laid in impugned show-cause notices wherein, it has been observed that petitioners have deliberately contravened provisions of Finance Act, 1994 and rules made thereunder with intention to evade payment of service tax. It was, accordingly, urged that petitions being devoid of merits, deserve to dismissed. 11. From facts and contentions as noted herein above, it is evident that main ground on which petitioners are sought to be denied exemption from service tax in respect of services provided by them to Boards/University is that according to respondents, Boards/University are not educational institutions. 12. facts are not in dispute, inasmuch as nature of services provided by petitioners in Special Civil Application No.20748 of 2018 are examination related activities like Barcode Scanning, Printing, OMR Scanning, Data Entry, etc. provided to service recipients mentioned in impugned show-cause notice and in case of petitioners in Special Civil Application No. 7414 of 2019, services provided are in nature of rent-a-cab in connection with examinations held by concerned Boards/University. It is admitted position that such services are exempted under section 66D(l) of Finance Act, 1994 as well as under Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 if such services Page 44 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT have been provided to educational institutions . petitioners have not paid service tax on services provided to above institutions claiming exemption under serial No. 9 of Mega Exemption Notification No. 25/2012-ST dated 20.06.2012, as amended, applicable to services provided to educational institutions. case of respondents is that institutions to which services by way of result processing and conducting of examination related work have been provided by petitioners, do not provide services specified in clause (l) of section 66D of Finance Act, 1994 and are, therefore, not educational institutions . 13. moot question that, therefore, arises for consideration is whether Boards and University to whom services are provided by petitioners are educational institutions . 13.1 It is case of petitioners that in view of functions and duties of Boards/University under relevant statutes, services provided to them fell under negative list till 13.05.2016. Furthermore, it is case of petitioners that services provided by them are covered under Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 as amended from time to time. 13.2 Vide section 143(F) of Finance Act, 2012, with effect from 01.07.2012, Finance Act, 1994 came to be amended whereby section 66D, which provides for negative list of services came to be inserted. Services which fall under negative list of services are not chargeable to service tax under section 66B of Finance Act, 1994 on or after Page 45 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT coming into force of Finance Act, 2012. 13.3 Clause (l) of section 66D of Finance Act, 1994, which is relevant for present purpose, reads thus: 66-D. Negative list of services.- negative list shall comprise of following services, namely- (l) services by way of - (i) pre-school education and education up to higher secondary school or equivalent; (ii) education as part of curriculum for obtaining qualification recognized by any law for time being in force; (iii) education as part of approved vocational education course. 13.4 Entry 9 of Mega Exemption Notification No.25/2012-ST dated 20th June, 2012, which was effective from 01.07.2012 to 31.03.2013, reads as under: 9. Services provided to or by educational institution in respect of education exempted from service tax, by way of,- (a) Auxiliary educational services; or (b) Renting of immovable property; Definition (f) - auxiliary educational services means any services relating to imparting any skill, knowledge, education or development of course content or any other knowledge - enhanced activity, whether for students or faculty, or other services which educational institutions ordinarily carry out themselves but may obtain as outsourced services from any other person, including services relating to admission to such institution, conduct of examination, catering for students under any mid-day meals scheme sponsored by Government, or transportation of students, faculty or staff of such institution; Page 46 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 13.5 With effect from 11th July, 2014, definition of "educational institution came to be inserted in Mega Exemption Notification No.25/2012 dated 20th June, 2012 vide clause (oa), which was in force from 11.07.2014 to 14.05.2016. Clause (oa) reads as under: (oa) Educational institution means institution providing services specified in clause (l) of section 66D of Finance Act, 1994. 13.6 definition of educational institution in Mega Exemption Notification No.25/2012 came to be further amended with effect from 14.05.2016, and reads thus: (oa) educational institution means institution providing services by way of: (i) Pre-school education and education up to higher secondary school or equivalent; (ii) Education as part of curriculum for obtaining qualification recognized by any law for time being in force; (iii) Education as part of approved vocational education course. 13.7 Thus, with effect from 14.05.2016, definition of educational institution is brought in line with clause (l) of section 66D of Finance Act, 1994 and is identically worded. 13.8 At this juncture, reference may be made to CBEC Circular No.172/7/2013-ST dated 19.09.2013, which has been issued for clarification regarding levy of service tax on certain services relating to education sector. said circular refers to clause (l) of section 66D of Finance Act, 1994 as Page 47 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT well as Serial No. 9 of Notification No.25/2012-ST dated 20.06.2012. In paragraph 3 of said circular, it is provided thus: 3. By virtue of entry in negative list and by virtue of portion of exemption notification, it will be clear that all services relating to education are exempt from service tax. 13.9 While educational institution came to be defined for first time with effect from 11.07.2014, services mentioned in section 66D (l) of Finance Act, 1994 continued to be exempted. 13.10 According to respondents, services provided by institutions to which services are provided by petitioners, are not services which can be said to be services by way of pre-school education and education up to higher secondary or equivalent; education as part of curriculum for obtaining qualification recognised by any law for time being in force; or education as part of approved vocational education course; and therefore, activities carried out by Boards/University do not fall within ambit of clause (l) of section 66D of Finance Act, 1994 or clause (oa) of Mega Exemption Notification. 13.11 It is further case of respondents that auxiliary education services, that is, conduct of examination and result processing are exempted only if such services are provided to educational institution. It, however, is not in dispute that services provided by petitioners are in nature of auxiliary education services as defined under clause Page 48 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT (f) of definitions paragraph of Mega Exemption Notification. 13.12 Notification No.06/2014 - Service Tax dated 11.07.2014 defines educational institution to mean institution providing services specified in clause (l) of section 66D of Finance Act, 1994. Therefore only those entities which provide such services would qualify under term educational institution . 13.13 It appears that according to respondents term educational institution" envisages only those institutions which actually enroll students and impart education. In paragraph 7.6 of show-cause notice, it has been stated that on examining functions and duties of above said Boards/University, it appears that these Boards/University are functioning as organisations which are entrusted with work of creating more schools/colleges/institutes under their affiliation, to prepare syllabus of education for such institutes, to conduct academic tests and exams, to appoint examiners/supervisors for smooth conduct of examination, to declare results of such examinations etc. On broader aspect, these University/Boards work more like managerial organisations to plan syllabus of education and conduct of examination for institutes affiliated under them. For this purpose, Boards/University procure services of other service providers for such examination related and result processing services. According to respondents, therefore, on reading definition of educational institution as given under Finance Act, 1994 and comparing it with functions and duties of (i) GSEB, (ii) GTU, (iii) MSEB and (iv) Page 49 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT MSCE, these institutions do not qualify as educational institutions . 13.14 scope and ambit of expression educational institution as defined under clause (oa) of Mega Exemption Notification requires to be examined. Furthermore, it is required to be ascertained as to whether services provided by petitioners to Boards/University fall within ambit of clause (l) of section 66D of Finance Act. Under clause (oa) of Mega Exemption Notification, educational institution is defined to mean institution providing services by way of: (i) Pre-school education and education up to higher secondary school or equivalent; (ii) Education as part of curriculum for obtaining qualification recognized by any law for time being in force; (iii) Education as part of approved vocational education course. Clause (l) of section 66D of Finance Act, 1994 reads thus: (l) services by way of- (i) pre-school education and education up to higher secondary school or equivalent; (ii) education as part of curriculum for obtaining qualification recognized by any law for time being in force; (iii) education as part of approved vocational education course. 13.15 Thus, nature of services referred to in clause (l) of section 66D of Finance Act, 1994 and clause (oa) of Mega Exemption Notification are verbatim. Page 50 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 13.16 question is, whether narrow meaning sought to be assigned to word education by respondents is required to be adopted, namely only those institutions which directly impart education to students; or broader meaning which includes even those institutions which are connected with education of those students. 13.17 At this juncture, reference may be made to certain decisions on which reliance has been placed on behalf of petitioners. 13.17.1 In Gujarat University v. Krishna Ranganath Mudholkar, (supra), Supreme Court held that expression education is of wide import and includes all matters relating to importing and controlling education. 13.17.2 In P. A. Inamdar v. State of Maharashtra, (supra), Supreme Court held thus: "81. Education according to Chambers Dictionary is bringing up or training; strengthening of powers of body or mind; culture . 82. In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edn., 2005, Vol. 2) education" is defined in very Wide terms. It is stated: Education is bringing up; process of developing and training powers and capabilities of human beings. In its broadest sense word comprehends not merely instruction received at school, or college but whole course of training moral, intellectual and physical; is not limited to ordinary instruction of child in pursuits of literature. It also comprehends proper attention to moral and religious sentiments of child. And Page 51 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT it is sometimes used as synonymous with learning . 83. In Sole Trustee, Lok Shikshana Trust v. CIT, term education" was held to mean: systematic instruction, schooling or training given to young in preparation for work of life. It also connotes whole course of scholastic instruction which person has received. What education connotes is process of training and developing knowledge, skill, mind and character of students by formal schooling. 84. In India Vision - 2020 published by Planning Commission of India, it is stated (at p. 250): Education is important input both for growth of society as well as for individual. Properly planned educational input can contribute to increase in gross national products, cultural richness, build positive attitude towards technology and increase efficiency and effectiveness of governance. Education opens new horizons for individual, provides new aspirations and develops new values. It strengthens competencies and develops commitment. Education generates in individual critical outlook on social and political realities and sharpens ability to self- examination, self-monitoring and self-criticism. 13.17.3 ln Nidhi Kaim v. State of M.P., (supra) Supreme Court held that examination is always considered as one of major means to assess and evaluate candidate's skills and knowledge be it school test, university examination, professional entrance examination or any other examination. Candidate's fitness for his further assignment, whether in studies or employment is, therefore, judged on basis of his performance in examination. It is for this reason, examination is considered as common tool around which entire education system revolves. Page 52 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 13.17.4 In State of T.N. v. K. Shyam Sunder, (supra) Supreme Court held thus: 21. There has been campaign that right to education under Article 21-A of our Constitution be read in conformity with Articles 14 and 15 of Constitution and there must be no discrimination in quality of education. Thus, common syllabus and common curriculum is required. right of child should not be restricted only to free and compulsory education, but should be extended to have quality education without any discrimination on ground of its economic, social and cultural background." 13.18 Thus, Supreme Court, in above decisions, has held that: - expression "education" is of wide import and includes all matters relating to imparting and controlling education; - examination is always considered as one of major means to assess and evaluate candidate's skills and knowledge be it school test, university examination, professional entrance examination or any other examination. - Candidate's fitness for his further assignment whether in studies or employment is, therefore, judged on basis of his performance in examination. It is for this reason, examination is considered as common tool around which entire education system revolves. Page 53 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT - For purpose of bringing right to education under article 21 of Constitution in conformity with articles 14 and 15, there must be no discrimination in quality of education, which requires common syllabus and common curriculum. 13.19 Orissa High Court, in Secondary Board of Education, Orissa v. Income Tax Officer, Ward E , Cuttack, (supra), has held thus: Board of Secondary Education is not University but it is undisputedly educational institution. Xxxx income and expenditure of Board is controlled and entire expenditure is to be directed towards development and expansion of educational purposes. Even if there is some surplus it is not appropriated by others but it remains part of sinking fund to be devoted to cause of education as and when necessary. This being objective and there being various ways of control of income and expenditure, Board of Secondary Education cannot be said to be existing for purposes of profits. It exists solely for purposes of education. 13.20 This court respectfully concurs with above view of Orissa High Court, namely that Board of Secondary Education exists solely for purposes of education. 13.21 In light of above principles enunciated in decisions referred to hereinabove, this court is of opinion that word education cannot be given narrow meaning by restricting it to actual imparting of education to students but has to be given wider meaning which would take within its sweep, all matters relating to imparting and Page 54 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT controlling education. Examination is essential component of education as it is one of major means to assess and evaluate candidate's skills and knowledge, be it school test, university examination, professional entrance examination or any other examination. As held by Supreme Court, examination is considered as common tool around which entire education system revolves. 13.22 Thus, education would mean entire process of learning, including examination and grant certificate or degree or diploma, as case may be and would not be limited to actual imparting of education in schools, colleges or institutions only. Unless School Boards hold examinations, education of school students would not be complete, so is case with college students, whose education would be complete only when University conducts examinations and awards degrees or diplomas. It is School Boards which issue Secondary and Higher Secondary School Certificates after holding examinations and University which confers degrees/diplomas etc. after holding examinations. Unless student holds certificate issued by Board, his or her school education would not be complete, similarly, without degree or diploma being conferred by University, college education would not be complete. Therefore, examinations are indispensable component of education, without which such education is incomplete. Therefore, to say that Boards/Universities are not educational institutions would amount to divorcing examinations from education. 13.23 Clause (l) of section 66D of Finance Act may be examined in light of above. Sub-clause (i) of clause (l) Page 55 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT refers to pre-school education and education up to higher secondary school or equivalent. When sub-clause says education up to higher secondary school or equivalent, it goes without saying that it includes examination leading to conferment of certificate of having passed higher secondary school or equivalent. Similarly when sub-clause (ii) says education as part of curriculum for obtaining qualification recognized by any law for time being in force, it is apparent that legislature meant entire process of preparation of curriculum to holding of examination leading to obtaining of qualification recognized by any law for time being in force. If contribution of Boards/Universities is excluded, there would be no curriculum for obtaining qualification nor would there be examination leading to conferment of such qualification. Clearly, therefore, it was not intention of legislature to exclude preparation of curriculum and holding of examinations from ambit of clause (l) of section 66D of Finance Act, 1994. As necessary corollary, therefore, School Boards and University in question would clearly fall within ambit of expression educational institution" as contemplated under clause (oa) of entry No.2 of Notification No. 25/2012-ST and services provided by such Boards/University would also fall within ambit of services as postulated under clause (l) of section 66D of Finance Act. 13.24 Government of India has also adopted similar approach in its Notification No.14/2018 Central Tax (Rate) dated 26th July, 2018 issued in exercise of powers conferred by sub-section (1) of section 11 of Central Goods and Services Tax Act, 2017, wherein it has been clarified that Central Page 56 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT and State Educational Boards shall be treated as educational institutions for limited purpose of providing services by way of conduct of examination to students. 14. Once Boards/University to whom services have been provided by petitioners, are held to be educational institutions, very substratum of impugned show-cause notices is lost inasmuch as show-cause notices are premised on allegation that service recipients namely Boards/University referred to hereinabove are not educational institutions and, therefore, services rendered by them do not fall within negative list of services as provided under section 66D(l) of Finance Act, 1994 and that Board/University are not educational institutions as defined under clause (oa) of Entry No.2 of Mega Exemption Notification No.25/2012-ST dated 20.06.2012. 15. Once it is held that service recipients are educational institutions, impugned show-cause notices are rendered unsustainable. Therefore, question as to whether respondents were justified in invoking extended period of time on ground that petitioners had, with intention to evade payment of service tax, misstated that these organisations are educational institutions to claim incorrect and ineligible exemption, is rendered more or less academic. Nonetheless court deems it fit to answer this question also. 16. Insofar as validity of extension of extended period of limitation is concerned, it may be noted that in case of M/s. Rajan Travels, namely petitioner in Special Civil Application No. 7414 of 2019, petitioner had first paid service tax Page 57 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT and thereafter claimed refund on ground that services provided by it were exempt from service tax. By order-in- original dated 01.10.2014, it was held that in view of Notification No. 25/2012-ST dated 20.06.2012 as amended, services in question were exempted and that petitioner was eligible to refund of service tax paid by it. order- in-original dated 01.10.2014 was scrutinized by audit section. Thereafter, revenue preferred appeal before Commissioner (Appeals) under section 85 of Finance Act, 1994. Based upon observations made by Audit Section, in memorandum of appeal it was submitted that tender/work order/contract of hiring vehicles as agreed upon with service provider to service receivers is inclusive of all taxes including service tax portion. However, while sanctioning refund to said service provider, JAC in his argument has not considered these aspects. And since contract terms refer to term inclusive of all taxes, it is clear that service tax was collected from receivers. It is further stated in memorandum of appeal that Since service provider was not required to pay Service Tax and Government has no intention to hold on amount, not due to it, refund was admissible to service provider, however, since service tax portion was already recovered by party from their service receivers, refund ought to be credited to Consumer Welfare Fund in view of doctrine of unjust enrichment. Thus, according to respondents service provider, namely petitioner, was not liable to pay service tax and appeal against order of refund was limited to extent that refund of service tax to petitioner would amount to unjust enrichment. Commissioner (Appeals), by order dated Page 58 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT 29.09.2015, held that though service tax paid is eligible for refund, same cannot be allowed to be kept with petitioner in terms of provisions contained in section 12C of Central Excise Act, 1944 as it would amount to unjust enrichment to petitioner and accordingly, directed amount to be credited to Consumer Welfare Fund. Thus, even in appeal, respondents admitted fact that services provided by petitioner were exempted from payment of service tax. order passed by Commissioner (Appeals) has been challenged by said petitioner before Customs, Excise and Service Tax Appellate Tribunal. Thus, respondents at that time had accepted that services provided by said petitioner are exempted from payment of service tax under Notification No.25/2012-ST dated 20.06.2012. 16.1 In this backdrop, when Department itself was of view that services provided by petitioner in Special Civil Application No.7414 of 2019 to Boards/Universities were covered by Mega Exemption Notification and were therefore, exempt, petitioners in both these petitions were equally entitled to hold such view. Therefore, it cannot be said that petitioners had, with intention to evade payment of service tax, misstated that organisations to which they had provided services are educational institutions to claim incorrect and ineligible exemption. larger period of limitation, therefore, could not have been invoked in facts and circumstances of present cases. 17. In light of above discussion, impugned show- cause notices cannot be sustained. petitions, therefore, Page 59 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 C/SCA/20748/2018 JUDGMENT succeed and are accordingly, allowed. impugned show- cause notices are hereby quashed and set aside. Rule is made absolute accordingly in both petitions, with no order as to costs. [ Harsha Devani, J. ] [ Sangeeta K. Vishen, J. ] hiren Page 60 of 60 Downloaded on : Wed Jun 09 11:48:51 IST 2021 Sahitya Mudranalaya Private Limited v. Additional Director General