1. This appeal by the assessee is directed against the order of the Commissioner (Appeals) dated 09.10.2007 dismissing the appeal of the appellant for non-compliance of the order dated 30.08.2007. By the said order dated 30.08.2007 the appellant was directed to pre-deposit a sum of Rs. 22,96,593/- in terms of Section 35-F of the Central Excise Act as condition for admission of the appeal and as the appellant failed to deposit the said amount, the appeal was dismissed by the impugned order. It is clear that the impugned order was the consequence of non-compliance of the earlier order dated 30.08.2007, which had not been challenged by the appellant. The basic order not having being challenged and the impugned order being mere consequence of that order, the appeal could be dismissed on this short ground alone. However, we do not want to take a short cut to non-suit the appellant and, therefore, propose to pass a brief order touching upon the controversy involved in the case.
2. We are conscious of the fact that there is no decision on merits by the Commissioner (Appeals) and if we record the findings touching upon merits, it may cause prejudice to the parties if the matter has to go back to the Commissioner (Appeals) for decision on merits on the appellant's depositing the amount, which it was directed to deposit, as mentioned above and with which we do not propose to interfere.
Nevertheless, in fairness to the appellant, we wish to record a brief speaking order as under: 3. The dispute relates to Service Tax. The appellant claims to be sponsors of Universities situated in a few States imparting educational programmes and training. In terms of Sub-clause (22c) of Clause 105 of Section 65 of the Finance Act, 1994, any service provided to any person by a commercial training or coaching centre in relation to commercial training or coaching is a taxable service. The appellant, however, seeks to take shelter under Clause (27) of Section 65 of the said Act which excludes inter alia "any institute or establishment issuing any certificate or diploma or degree or educational qualification recognized by law for the time being in force" from the ambit of 'commercial training or coaching centre'. The case of the appellant is that it is a registered society under which universities have been established and the money received in lieu of imparting of the educational programme and training is rolled back for the same purpose, and it cannot be treated as commercial training or coaching centre and, therefore, it is not amenable to Service Tax.
4. The Additional Commissioner in the impugned order found that the appellant has a vast network of centres situated across the country including the one at Jaipur which collect huge amounts as fees. The amount which the appellant is said to have received during the period in question between July, 2003 and December, 2005 was quantified as Rs. 2,67,48,000/-. The Additional Commissioner also found that the educational programmes and training etc. imported in the centres and the qualifications conferred are not recognized by the UGC or other statutory bodies like AICTE, NCTE, Bar Council of India etc. Not being recognized by any authority, the centres cannot claim the benefit of the exclusion clause in Clause (27) of Section 65 of the Finance Act which excludes any institute or establishment issuing any certificate or diploma or degree or any educational qualification "recognized by law" from the definition of commercial training or coaching center.
5. On behalf of the Revenue, it was submitted that the manner in which the amount is allegedly utilized by the appellant is not relevant. If the amount is charged and collected at the centres established by the appellant, it cannot escape the liability to pay Service Tax.
6. We are of the view that the dispute involves examination of records but unfortunately the Commissioner (Appeals) do not go into the merits of this case as the appellant did not pre-deposit the amount. We do not find prima facie case in favour of the appellant and, therefore, we do not think that the Commissioner (Appeals) committed any error in directing the appellant to pre-deposit the amount.
7. We may, at this stage, mention that this appeal came up for hearing on the point of waiver, but having taken the view that the appellant has no option but to pre-deposit the amount and the order of the Commissioner (Appeals) directing to pre-deposit the amount, was not erroneous, we not only reject the stay application, but also dismiss the appeal of the appellant with a direction to deposit the amount of Rs. 22,96,593/- within two months from today. On such deposit, the deposit of penalty will stand waived and the appeal shall be decided on merits after giving opportunity of hearing by the Commissioner (Appeals).
(Dictated and pronounced in the open Court on the 7^th day of February, 2008)