HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Commissioner CGST & Central Excise,
Manik Bagh Palace, Indore(M.P.)
M/s. M.P. Flying Club Ltd.
Indore dated, 7/05/2018
Shri Prasanna Prasad, learned counsel for the appellant.
Heard on the question of admission.
2. The issue involved in this matter is decided by this Court on 1/08/2014, passed in C.E.A. No.2/2014. Order dated 1/08/2014 reads as under :-
Shri Prasanna Prasad, learned counsel for the appellant.
This order will govern the disposal of CEA No.3/14, CEA No.4/14, CEA No.5/14, CEA No.6/14 and CEA No.10/14. As ti has been stated by then learned counsel for the appellant that the facts and the question involved in all these appeals are identical.
For the sake of convenience, the facts are taken from CEA No.2/14.
This appeal arises out of the order dated 02.07.2014 passed by Custom Excise & Service Tax Appellate Tribunal (for short “the Tribunal”) Principal Bench, New Delhi in Appeal No.759- 760/2012) filed against OIA No.63/2012 decided by the Commissioner (Appeals), Indore and OIA No.13/2010 vide order dated 03.12.2010.
Having gone through the impugned order passed by the Tribunal, we find that the Tribunal has disposed of the said appeal and also other connected appeals on the basis of the prayer made by the learned counsel for the parties that the appeals may be disposed of in light of the judgment of Delhi High Court in the case of Indian Institute of Aircraft Engineering Vs. Union of India and others, 2013- TIOL-430-HC-DEL-ST=2013(30) S.T.R.689(Del.)
Taking note of the prayer made by the learned counsel for the parties, the Tribunal dismissed the Revenue's appeals and allowed the appeals filed by the respondent-assessee in the light of the decision of the Delhi High Court.
Having regard to the aforesaid it is clear that the impugned order being passed by the Tribunal on the basis of the request made on behalf of the parties, in the circumstances, we are of the view that no case for interference in this appeal is made out.
Even otherwise, we find ourselves in agreement with the view taken by Delhi High Court as reflected in paragraph Nos.25, 26, 27 and 28 of the order passed by the Delhi High Court which read as under :-
25. We are of the view that the Act, the Rules and the CAR, having provided for grant of approval to such institutes and having laid down conditions for grant of such approval and having further provided for relaxation of one year in the minimum practical training required for taking the DGCA examination, have recognized the Course Completion Certificate and the qualification offered by such Institutes. The certificate/training/qualification offered by Institutes which are without approval of DGCA would not confer the benefit of such relaxation. Thus, the certificate/training/qualification offered by approved Institutes, has by the Act, Rules and the CAR been conferred some value in the eyes of law, even if it be only for the purpose of eligibility for obtaining ultimate licence/approval for certifying repair / maintenance / airworthiness of aircrafts. The Act, Rules and CAR distinguish an approved Institute from an unapproved one and a successful candidate from an approved institute would be entitled to enforce the right, conferred on him by the Act, Rules and CAR, to one year relaxation against the DGCA in a Court of law. The inference can only be one, that the Course Completion Certificate/training offered by such Institutes is recognized by law.
26. There can be no doubt that such recognition through the Rules framed as aforesaid and through issuance of CAR is a recognition by law, which is defined in Black ‟s Law Dictionary, 8 th Edition as the aggregate of legislation, judicial precedents and accepted legal principles and the set of rules or principles dealing with a specific area of legal systems. The Rules and the CAR aforesaid dealing with aircrafts, there can be no doubt, are law.
The Supreme Court in Narsingh Pratap Singh Deo Vs. State of Orissa AIR 1964 SC 1793 held that a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognized by Courts.
Similarly, in R.S. Nayak Vs. A.R. Antulay (1984) 2 SCC 183 it was held that law includes any Ordinance, Bylaw, Rule, Regulation, Notification, Custom or Usage having force of law. The Rules and CAR aforesaid have been enacted in exercise of legislative power as aforesaid.
27. The reasoning in the impugned Instruction dated 11 th May, 2011 that because the qualification awarded by the Institute does not culminate in automatic issuance of license/authorization by the DGCA to certify the repair, maintenance or airworthiness of an aircraft and for which purpose a further examination to be conducted by the DGCA is to be taken, in our view mixes up and confuses, „qualification with „a license ‟ to practice on the basis of that qualification‟. An educational qualification recognized by law will not cease to be recognized by law merely because for practicing in the field to which the qualification relates, a further examination held by a body regulating that field of practice is to be taken. Immediate instance can be given of the qualification in the field of law. Though by amendment of the recent years, the right to practice law on the basis of the said qualification has been made subject to clearing /passing a Bar Exam to be held by the Bar Council of India , the same does not make the qualification of law not recognized by law.
The recognition accorded by the Act, Rules and CAR supra to the Course Completion Certificate issued by the Institutes as the petitioner cannot be withered away or ignored merely because the same does not automatically allow the holder of such qualification to certify the repair, maintenance or airworthiness of an aircraft and for which authorization a further examination to be conducted by the DGCA has to be passed/cleared.
28. We are therefore of the view that the Instruction aforesaid holding the petitioner to be assessable to Service Tax is contrary to Section 65(27)and the Notification dated 25th April, 2011. Accordingly the said Instruction and the show cause notices given to the petitioner are quashed. The Rule is made absolute and the writ petition is disposed of.
As a result, no case for interference is made out. No substantial question of law arises in this appeal. The appeal fails and is hereby dismissed.
3. It is submitted that against the aforesaid order dated 1/08/2014, passed in C.E.A. No.2/2014, SLP is pending before the Apex Court.
4. In view of the aforesaid, no substantial question of law arises in this appeal. The present C.E.A. No.52/2017 is, accordingly, disposed of on the same terms as passed in C.E.A. No.2/2014 on 1/08/2014, subject to the final outcome of SLP.
(P.K. Jaiswal) (S.K. Awasthi)