JUDGMENT K.S. Jhaveri, J. —By way of these appeals, the appellants have challenged the judgment and order of the Tribunal [ 2009 (14) S.T.R. 34 (Tribunal)] whereby the Tribunal has dismissed the appeals of the assessee confirming the order of Commissioner of Central Excise and Service Tax, dated 1-8-2006 whereby the appellants were directed to pay tax for the services rendered after 1-7-2003. 2. This Court while admitting the matter has framed the following substantial questions of law : D.B. Central Excise Appeal No. 11/2009 admitted on 16-3-2009 "Whether the clarification dated 5-11-2003 issued by Tax Research Unit (TRU) was ultra vires, null and void and beyond authority delegated under section 37B of the Central Excise Act, 1944, in giving interpretation and authority to collect tax prior to the date of levy, contrary to the provisions of Sections 66, 67, 68, 69 of the Finance Act, 1994, read with Rules 4 and 6 of the Service Tax Rules, 1994?" D.B. Central Excise Appeal No. 12/2009 admitted on 16-3-2009 "Whether the clarification dated 5-11-2003 issued by Tax Research Unit (TRU) was ultra vires, null and void and beyond authority delegated under section 37B of the Central Excise Act, 1944, in giving interpretation and authority to collect tax prior to the date of levy, contrary to the provisions of Sections 66, 67, 68, 69 of the Finance Act, 1994, read with Rules 4 and 6 of the Service Tax Rules, 1994?" D.B. Central Excise Appeal No. 18/2013 admitted on 28-9-2016 "Whether Service Tax can be levied on the amount received prior to date of levy when registration and invoice could not be raised to collect indirect tax and provisions of Provisional Collection Act were not applicable and Section 66 of the Act imposed the levy w.e.f. 1-7-2003? Whether treatment of service under the head of Commercial Coaching Centre and franchisee service on the same issue by the Department can be held to be suppression on the part of appellant and the demand tenable under both the heads simultaneously?" 3. The facts of the case are that the assessee is running coaching classes. They have entered into a concluded contract prior to April of every year for collecting fees for the whole year. It goes without saying that for the services which are rendered after 1-7-2003, the fees are received. 4. The facts of the case are that the assessee is running coaching classes. They have entered into a concluded contract prior to April of every year for collecting fees for the whole year. It goes without saying that for the services which are rendered after 1-7-2003, the fees are received. 4. The main contention which is raised for our consideration is whether the law came into force w.e.f. 1-7-2003 and the concluded contract which has entered prior to coming into force of the law where the taxing statute has taken place on 1-7-2003 should be taxed if the contract is concluded and the services are rendered thereafter. For which, the counsel for the appellant has taken us to the following Circular which has been issued by the department on 5-11-2003 which reads as under :- 65/14/2003, dated : Nov. 5, 2003 F. No. B3/7/2003-TRU (part) Sir, Madam, Subject : Payment of Service Tax in case of advance payment of value of services. 1. I am directed to say that some doubts have been raised regarding payment of Service Tax in cases where a lump sum payment for a service to be provided in future over a certain period of time, is made in advance before the date on which the particular service came under the tax net, but the entire or part of such service is provided after the date on which it became taxable. The doubt appears to have arisen as Rule 6(1) of Service Tax Rules, 1994, provides for payment of tax on the value of service received during a month/quarter, and in the instant case, no payment is received after the date on which the tax came into force (for example a case where payments for coaching service is received before 1-7-2003 i.e. the date on which the service became taxable, but the entire or part of coaching is provided after that date). 2. In this regard it may be noted that rule 16 only prescribes the procedure of payment of tax. The liability of tax is created by section 66 of the Finance Act, 1994 as amended from time to time. The liability to pay tax is fastened on the service provider by section 68 of the said Act. These two sections read together imply that Service Tax is payable by the service provider on the value of taxable services. The liability of tax is created by section 66 of the Finance Act, 1994 as amended from time to time. The liability to pay tax is fastened on the service provider by section 68 of the said Act. These two sections read together imply that Service Tax is payable by the service provider on the value of taxable services. Thus if a service provided is taxable tax has to be paid on its value. Section 67 also clarifies value of service as the amount charged for the taxable service by the service provider. In other words, an amount becomes value of taxable service only when it has a nexus with the service provided. That is the reason why the expression used in rule 6 is "value of taxable services" and not amount. The implication is that the tax has to be paid on the value of taxable services attributable to the service provided in a month/quarter as and when it is received. Thus, rule 6(1) cannot be read in isolation. When read along with the provisions of the Act, it becomes clear that where the value of taxable Service Tax has to be paid on the value of service attributable to the relevant months/quarter which may be worked out on pro rata basis. 3. In this context, attention is invited to para 2.3.1 of circular No. 59/8/2003, dated 20-6-2003 wherein it was clarified that in view of the notification 11/2003-S.T., dated 20-6-2003, no Service Tax would be payable where maintenance contracts are entered into before l-7-2003, provided the invoices are raised and paid prior to 1-7-2003. It was further mentioned in the circular that similar would be the situation in case of continuing services. By continuing services what was meant was continuing maintenance services were there is an ongoing contact under which regular periodical payments are made. That para 2.3.1 was only in the context of maintenance and repair service is also quite clear from the heading. "MAINTENANCE AND REPAIR SERVICES" of para 2.3 in that circular. No similar exemption has been granted to any other service in case of advance payments. 4. Receipt of this letter, may please be acknowledged." 5. He has also taken us to para 9 at page 48 which reads as under :- "9. "MAINTENANCE AND REPAIR SERVICES" of para 2.3 in that circular. No similar exemption has been granted to any other service in case of advance payments. 4. Receipt of this letter, may please be acknowledged." 5. He has also taken us to para 9 at page 48 which reads as under :- "9. That the appellant as per his understanding and legal advice, has a firm belief that he is not liable for payment of Service Tax amount at the rate of 8 per cent or as applicable on the amount received from the students prior to 1-7-2003 for services rendered for the period either prior to 1-7-2003 or after 1-7-2003 i.e. the effective date, and that the said belief of appellant is based upon the understanding of following legal provisions : (i) Vide Finance Bill, 1994, Service Tax was introduced as an Indirect Tax and the Finance Minister in his speech has clearly stated that as per the Tax Reforms Committee''s recommendation, the net of indirect tax is broadened by including service sector and the proposals of his budget speech and new levies will come into force from a date to be notified later on. The relevant para 87 is produced below : "Over the years while attempts have been made to widen the base for domestic indirect taxes, the services sector has not been subjected to taxation. Yet this sector accounts for about 40% of our GDP and is showing strong growth. There is no sound reason for exempting services from taxation, when goods are taxed and many countries treat goods and services alike for tax purposes. The Tax Reforms Committee has also recommended imposition of tax on services as a measure for broadening the base of Indirect Taxes, I, therefore propose to make a modest effort in this direction by imposing a tax on services of telephones, non-life insurance and stock brokers. The tax will be charged at 5 per cent on the amount of telephone bills, the net premium charged by the insurance companies, and the brokerage or commission charged by the stock brokers in relation to their services. The tax will be charged at 5 per cent on the amount of telephone bills, the net premium charged by the insurance companies, and the brokerage or commission charged by the stock brokers in relation to their services. These proposals will come into force from a date to be notified later on." (ii) Vide Para 170 of Finance Minister''s speech in the Union Budget 2003, intention of legislature was very clear on the subject of increase in rate from 5 per cent to 8 per cent and that the levy of tax on the new services will be effective from notified date. The relevant para 170 is reproduced below : "I propose to enhance the general Service Tax rate from 5 per cent to 8 per cent, and also impose Service Tax on 10 new services. While the increase in the tax rates will come into effect on enactment of the Finance Bill, the levy of tax on the new services will take effect from a date to be notified. (iii) Vide explanatory memorandum to the Finance Bill, it was very clear that the intention of legislature was to Tax the new levies only from the notified date and also at the rate of 8 per cent while is clear in Para 9 of the memorandum. Further, the intent of legislature is also clear from the fact that they have not introduced the provisions of Provisional Collection of Taxes Act of 1931 which are intentionally applied on Excise and Customs Duty which are the mother Acts of Service Tax. (iv) That the Finance Bill was enacted by the Parliament on 14-5-2003 and as per Chapter V pertaining to Indirect taxes, few changes and mergers were done in the Finance Act, 1994 by redefining Section 65, the definition section wherein Section 65(26) and Section 65(27) and Section 65(64) were added for the first time and taxable services pertaining to Commercial Coaching centers were added in Section 65(105) of the Act. It is also important to state here that Section 66 of the Finance Act, 1994 which is the charging section of Service Tax was inserted with new Clause (2) which specifically says that the levy of Service Tax on new services like Commercial Coaching centers and Repairs and Maintenance services will be effective from the notified date at the rate of 8 per cent." 6. He has also taken us to definition of Section 65 which reads as under :- 65. Definitions. - In this Chapter, unless the context otherwise requires, - (7) "assessee" means a person liable to pay the Service Tax and includes his agent; (13) "Board" means the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963); (25) "Commercial Training or Coaching" means any training or coaching provided by a commercial training or coaching centre; (27) "Commercial Training or Coaching" means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes but does not include preschool coaching and training centre of any institute or establishment which issues any certificates or diploma or degree or any educational qualification recognized by law for the time being in force; 7. He has also relied on Rule 6 and Rule 4 and more particularly 83 which reads as under :- "6. Payment of Service Tax. - (1) The Service Tax on the value of taxable services received during any calendar month shall be paid to the credit of the Central Government by the 25th of the month immediately following the said calendar month : Provided further that where the assessee is an individual or proprietary firm or partnership firm, the Service Tax on the value of taxable service received during any quarter shall be paid to the credit of the Central Government by the 25th of the month immediately following the said quarter. (2) The assessee shall deposit the Service Tax liable to be paid by him with the bank designated by the Central Board of Excise and Customs for this purpose in Form TR-6 or in any other manner prescribed by the Central Board of Excise and Customs." "Rule 4 : Registration : (1) Every person liable for paying the Service Tax shall make an application to the concerned Superintendent of Central Excise appointed under Rule 3 in Form S.T.-1 for registration within a period of thirty days from the date on which the Service Tax under section 66 of the Finance Act, 1994 (32 of 1994) is levied : Provided that where a person commences the business of providing a taxable service after such service has been levied, he shall make an application for registration within a period of thirty days from the date of such commencement. (5) The Superintendent of Central Excise shall after the due verification of the application form grant a certificate of registration in Form S.T.-2 within seven days from the date of receipt of the application. If the registration certificate is not granted within the said period, the registration applied for shall be deemed to have been granted." "83. Application of certain provisions of Act (1 of 1944). - The provisions of the following sections of the Central Excise Act, 1994 (1 of 1944), as in force from time of time, shall apply, so far as may be in relation of Service Tax as they apply in relation to a duty of excise. 9C, 9D, 11, 11B, [11BB], [11D], [12A], 12B, 12C, 12D, 12E, 14, 15, 35F TO 35-O [both inclusive], 35Q, 36, 36A, 36B, 37A, 37B, 37C, 37D and 40." "12A (of Central Excise) : Price of goods to indicate the amount of duty paid thereon. - Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 12B (of Central Excise Act) Presumption that the incidence of duty has been passed on to the buyer. 12B (of Central Excise Act) Presumption that the incidence of duty has been passed on to the buyer. - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods." 8. He has also taken us to the Service Tax (Amendment) Rules, 2003 which came into force on the date of their publication in the Official Gazette. Clause (v) and (vi) which reads as under :- "(v) Vide Notification No. 7/2003 notification was issued under the power of Section 66(2) of the Finance Act, 1994, by which all the new services introduced by the Finance Bill, confirmed in the Finance Act mentioned hereinunder were levied with the Service Tax @ 8 per cent w.e.f. 1-7-2003 onward. The said notification is reproduced as under. In exercise of the powers conferred by sub-section (2) of section 66 of the Finance Act, 1994 (32 of 1994), the Central Government hereby appoints the 1st day of July, 2003, as the date from which the Service Tax shall be levied under sub-section (2) of section 66 of the said Finance Act. [Notification No. 7/2003-S.T., dated 20-6-2003, Source - 2003 (E.L.T.) 155 Pg. N-168] (vi) Vide C.B.E. and C. Circular dated 20-6-2003, it was made absolutely clear that the effective date of levy would be 1-7-2003, the said circular is for the sake of brevity not reproduced but is marked as Annexure 4 to the appeal and enclosed herewith." 9. He further contended that the Tribunal while considering the matter has observed as under :- "(b) Service Tax was not payable on advance receipt during the relevant period, as there was no provisions in the Finance Act, 1944 or the Service Tax Rules for recovery of the tax against advance receipt. He drew the attention of the Bench various provisions of Finance Act, 1994 and Rules. He relied upon the Board Circular F. No. B-1/6/2005-TRU, dated 27th July, 2005. Reliance is placed on the decision of the Hon''ble Supreme Court in the case of Commissioner of Income Tax v. Srinivas Sethy, reported in 1981 (128) I.T.R. 294 (SC) . He drew the attention of the Bench various provisions of Finance Act, 1994 and Rules. He relied upon the Board Circular F. No. B-1/6/2005-TRU, dated 27th July, 2005. Reliance is placed on the decision of the Hon''ble Supreme Court in the case of Commissioner of Income Tax v. Srinivas Sethy, reported in 1981 (128) I.T.R. 294 (SC) . (d) By Board Circular No. B.II/1/2002-TRU, dated 1-8-2002, it is clarified that no Service Tax will be payable on membership fee already collected, prior to the date on which new Service Tax on "clubs and fitness centres" has come into force; He submits that the said circular is similarly applicable in the present case." 10. He further contended that in Section 65(105) "Taxable Service" came to be amended and further since there was a lacuna, the amendment made reads as under : "(105) "taxable service" means any service provided : (zzc) to any person, by a commercial training or coaching centre in relation to commercial training or coaching;" 11. Counsel for the appellant has further taken us to clause (ii), (iv), (vi) and para 10 of the order which reads as under :- "(ii) On perusal of various provisions of Act and Rules, as discussed above, we do not find any reason to treat service provider, who received value of taxable service in advance a separate class. To our mind, it is apparent from the provisions that the payment of tax is linked with rendering of services irrespective of fact the amount was received in advance. The learned Advocate strongly relied upon interpretation of words "provided or to be provided" in the place of "rendered by him" and insertion of Explanation-3 under Section 67 of the Act. It is submitted by learned Advocate that from 16-6-2005 the words "or to be provided" were inserted in Section 65(105) by which Service Tax was payable on whatever be collected for a service to be provided in future. He also relied upon Board''s Circular F.No. B1/6/2005-TRU, dated 27-7-2005. The ld. Joint C.D.R. submitted that explanation inserted subsequently "for the removal of doubt" only reinforces an already existing provision and does not introduce anything new. The Explanation would be retrospective or not, depending on the meaning of the provisions of Section and Rules. In the present case, the Explanation appears to be declaratory in nature, would have retrospective effect The ld. Joint C.D.R. submitted that explanation inserted subsequently "for the removal of doubt" only reinforces an already existing provision and does not introduce anything new. The Explanation would be retrospective or not, depending on the meaning of the provisions of Section and Rules. In the present case, the Explanation appears to be declaratory in nature, would have retrospective effect The ld. Joint C.D.R. relied upon the decision of the Hon''ble Delhi High Court in the case of Pawan Kumar v. DRI - 2007 (218) E.L.T. 331 (Del.) and Binani Industries Ltd. (JT) 2007 (5) SC (311) . The relevant portion in the case of Pawan Kumar (supra) is reproduced below :- (10) The presumption against retrospective operation is not applicable to declaratory statutes. CRAIES has explained the position regarding declaratory statutes in the following manner [Statute Law, 7th Edn., p. 58] :- "For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if invariably, such an Act contains a preamble, and also the word ''declared'' as well as the work ''enacted'', (approved by the Supreme Court in Central Bank of India v. Their Workmen, AIR 1960 SC 12 ) . (11) An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a Statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. In view of the above discussions, we find that subsequent amendment of provisions would not change the dimension of the appellant''s case. (iv) The learned Advocate stated that in the taxing statute, the levy and collection provision constitute an integral code, if the machinery provisions fail, levy cannot be enforced. There is no quarrel on this proposition. In view of the above discussions, we find that subsequent amendment of provisions would not change the dimension of the appellant''s case. (iv) The learned Advocate stated that in the taxing statute, the levy and collection provision constitute an integral code, if the machinery provisions fail, levy cannot be enforced. There is no quarrel on this proposition. But, in the instant case, there is machinery provision relating to collection of tax, in our view, which would be workable in the present situation." (vi) However, we find force in the submission of ld. Advocate that the present case relates to interpretation of the provisions of law and the imposition of penalty and extended period of limitation are not warranted. 10. In view of the above discussions, we upheld the orders on merit. We hold that in the facts and circumstances of the case, the extended period of limitation is not applicable. It is a case of interpretation of the provision of law and, therefore, penalties are not warranted and accordingly, it is set aside. We also direct that benefit of cum-tax in respect of the amount realised by them prior to 1-7-2003 would be extended." 12. Taking into consideration, he contended that it was impossible for the assessee to envisage that the Central Government is going to impose Service Tax with effect from 1-7-2003. 13. He has also relied upon Section 22 of the General Clauses Act, which reads as under : "22 Making of rules or bye-laws and issuing of orders between passing and commencement of enactment. Where, by any 40 [Central Act] or Regulation which is not to come into force immediately, on the passing thereof, a power is conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act or Regulation, or with respect to the establishment of any Court or office or the appointment of any Judge or officer thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which, or the fees for which, anything is to be done under the Act or Regulation, then that power may be exercised at any time after the passing of the Act or Regulation; but rules, bye-laws or orders so made or issued shall not take effect till the commencement of the Act or Regulation." 14. He has also relied upon the judgment of the Supreme Court in the case of Suchiatra Components Ltd. v. Commissioner of Central Excise, Guntur : 2007 (208) E.L.T. 321 (S.C.) wherein it has been held as under :- "2. We have heard Mr. A.R. Madhav Rao, learned Counsel for the appellant and Mr. K. Radhakrishna, learned Senior Counsel for the respondent. We have perused the orders passed by the lower Authorities and also of the Tribunal. The point raised by the learned Counsel for the appellant is covered by the recent judgment of this Court in Civil Appeal No. 4488 of 2005, Commissioner of Central Excise, Bangalore v. Mysore Electricals Industries Ltd. reported in 2006 (204) E.L.T. 517 (S.C.) . In the said judgment, this Court held that a beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively. Thus, when the circular is against the assessee, they have right to claim enforcement of the same prospectively. 3. In view of the submission made by the learned Counsel for the appellant and also of the judgment of this Court in C.A. No. 4484/05 (supra), the appellant is liable to pay the duty from 29-8-1990 i.e. from the date of issue of the show cause notice and not from 1-3-1990 as ordered by the Tribunal." 15. He has also relied on the judgment rendered by the Supreme Court in the case of Somaiya Organics v. State of Uttar Pradesh : [ 2001 (130) E.L.T. 3 (S.C.)] wherein it has been held as under : "In the ultimate analysis, prospective overruling, despite the terminology, is only recognition of the principle that the court moulds the reliefs claimed to meet the justice of the case justice not in its logical but in its equitable sense. As far as this country is concerned, the power has been expressly conferred by Article 142 of the Constitution which allows this Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. In exercise of this power, this Court has often denied the relief claimed despite holding in the claimants favour in order to do complete justice. In exercise of this power, this Court has often denied the relief claimed despite holding in the claimants favour in order to do complete justice. It is, of course, true that in respect of the same period i.e. prior to 25th October, 1989 persons who had obtained stay orders or had otherwise not paid the levy would be better off than those who have deposited the sums with the Government and are not entitled to receive any refund. This situation, however, is unavoidable for the simple reason that Article 265 does not permit collection of tax without the authority of law. Even though levy prior to 25th October, 1989 may be valid but when in fact no collection was made pursuant to the said levy, then post judgment in the second Synthetics case collection is not permissible. After 25th October, 1989 there was no valid law in existence which permitted the collection of tax. Shri Venugopal is right in contending that after 25th October, 1989 the provisions of Section 39 of the U.P. Excise Act, 1910 which provides for recovery of excise revenue would be inapplicable. The said section inter alia states that all excise revenue may be recovered from the person primarily liable to pay the same, as arrears of land revenue or in the manner provided for the recovery of public demands by any law for the time being in force. Section 3(1) defines excise revenue as meaning revenue derived or derivable from any duty if the taxes etc. imposed or ordered under the provisions of the Act or of any other law for the time being in force. Section 3(3a) defines excise duty and countervailing duty as meaning any such excise duty or countervailing duty, as may be mentioned in Entry 51 of List II of the Seventh Schedule of the Constitution. There can be no excise duty under the U.P. Excise Act on industrial alcohol because that would be outside the ambit of Entry 51 of List II of the Seventh Schedule. Vend fee being regarded as excise duty on industrial alcohol which is not valid as not falling under Entry 51 of List II cannot be regarded as excise revenue and, therefore, at least after 25th October, 1989 it would be unrecoverable being outside the purview of the Section 39 of the U.P. Excise Act, 1910. Vend fee being regarded as excise duty on industrial alcohol which is not valid as not falling under Entry 51 of List II cannot be regarded as excise revenue and, therefore, at least after 25th October, 1989 it would be unrecoverable being outside the purview of the Section 39 of the U.P. Excise Act, 1910. This would clearly be the position as a result of the Court having declared relevant provisions of the U.P. Act as being ultra vires insofar as it enables the imposition of excise duty on industrial alcohol. For the aforesaid reasons, C.A. No. 4093 of 1991 is allowed. Civil Appeal No. 2853 of 2001 is dismissed. It is declared that the vend fee realised by the States is not to be refunded to the appellants and, at the same time, the State cannot collect any vend fee for the period prior to 25th October, 1989 or thereafter notwithstanding that notices of demand may have been issued or recovery proceeding initiated. Parties to bear their own costs. While I respectfully concur with the reasoning and conclusions reached by my learned brother KIRPAL, J., I wish to add my views on an aspect of the prospective over-ruling which was sought to be effected by the decision of the Constitution Bench of this Court in Synthetics and Chemicals Ltd. and Others v. State of U.P. and others, 1990 (1) SCC 109 . 16. He has also relied upon order of the Tribunal wherein while taking a contrary view in the case of M/s. Vigyan Gurukul v. C.C.E., Jaipur [2012 (25) S.T.R. 459 (Tri.-Del.)] the Tribunal has observed as under :- "10. For a harmonious construction of the relevant provisions it is necessary to quote them. They are quoted below : ''65(105) "taxable service" means any service provided or to be provided'' - as defined in the various clauses. "66. Charge of Service Tax. - There shall be levied a tax (hereinafter referred to as the Service Tax) at the rate of eight per cent of the value of taxable services referred to in sub-clauses (a), -, -, ---" (This rate was increased w.e.f. 10-9-2004) "67. For the purposes of this Chapter, the value of any taxable service shall be gross amount charged by the service provider for such service provided or to be provided by him." "68. Payment of Service Tax. For the purposes of this Chapter, the value of any taxable service shall be gross amount charged by the service provider for such service provided or to be provided by him." "68. Payment of Service Tax. - (1) Every person providing taxable service to any person shall pay Service Tax at the rate specified in section 66 in such manner and within such period as may be prescribed. (2) Notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the Service Tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this chapter shall apply to such person as if he is the person liable for paying the Service Tax in relation to such service." 11. Considering the fact that section 65(105) of Finance Act, 1994, defines taxable services including service to be provided and Rule 6 of Service Tax Rules prescribes payment of tax on consideration received during the calendar month without any reference to actual providing of service we are not able to agree with the point of view canvassed by Revenue. 12. We have also examined the Explanation in Rule 6(1). This explanation does not make any provision as to which rate of tax will apply in situation like the one at hand (whether that on date of receipt of value or that on date of providing service). This explanation says that the service provider needs to pay tax only on that portion of value for which Service Tax has been provided. In the instant case the Appellant paid tax on the full value received. The department did not take any objection to such payment in advance. So at a later date when the rate went up, there is no reason for the department to turn around and say that the appellant should not have paid tax in advance. So we do not find it proper to rely on this explanation to conclude that the rate of tax as prevalent at the time of providing service (This date itself is not a clear date in this case) will apply. So we do not find it proper to rely on this explanation to conclude that the rate of tax as prevalent at the time of providing service (This date itself is not a clear date in this case) will apply. We are of the view that during the relevant time the rate that was applicable at the time of receipt of value of service will apply in a case where the assessee chose to pay tax on the advance amount received. 13. We also take note that provisions in Rule 4(b)(ii) and Rule 9 of the new Point of Taxation Rules, 2011 as amended by Notification 25/2011-S.T., dated 30-3-2011 have the same effect as our conclusion. For convenience Rule 9 of the said Rule is reproduced below : "9. Transitional Provisions. - Nothing contained in this sub-rule shall be applicable, - (i) where the provision of service is competed; or (ii) where invoices are issued prior to the date on which these rules come into force : Provided that services for which provision is completed on or before 30th day of June, 2011 or where the invoices are issued up to the 30th day of June, 2011, the point of taxation shall, at the option of the taxpayer, be the date on which the payment is received or made as the case may be." 17. He has also relied on the decision of the Supreme Court in the case of Padmini Products v. Collector of C.Ex. [ 1989 (43) E.L.T. 195 (S.C.) ] wherein it has been held as under :- "Shri V. Lakshmi Kumaran, learned Counsel for the appellant drew our attention to the observations of this Court in Collector of Central Excise, Hyderabad v. Chemphar Drugs and Liniments, Hyderabad, (1990) 184 ITR 224 (SC) of the report, this Court observed that in order to sustain an order of the Tribunal beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section (1) of Section 11A of the Act, it had to be established that the duty of excise had not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud, or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. It was observed by this Court that something positive other than more inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise is required before it is saddled with any liability beyond the period of six months had to be established. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal, however, had held contrary to the contention of the appellants. The Tribunal noted that dhoop sticks are different products from agarbaties even though they belonged to the same category and the Tribunal was of the view that these were to be treated differently. Therefore, the clarification given in the context of the agarbaties could not be applicable to dhoop sticks etc., and the Tribunal came to the conclusion that inasmuch as the appellant had manufactured the goods without informing the Central Excise authorities and had been removing these without payment of duty, these would have to be taken to attract the mischief of the provisions of Rule 9(2) and the longer period of limitation was available. But the Tribunal reduced the penalty, Counsel for the appellants contended before us that in view of the trade notices which were referred to by the Tribunal, there is scope for believing that agarbaties were entitled to exemption and if that is so, then there is enough scope for believing that there was no need of taking out a licence under Rule 174 of the said Rules and also that there was no need of paying duty at the time of removal of dhoop sticks, etc. Counsel further submitted that in any event apart from the fact that no licence had been taken and for which no licence was required because the whole duty was exempt in view of Notification No. 111/78, referred to hereinbefore, and in view of the fact that there was scope for believing that it was exempt under Schedule annexed to the first notification, i.e., 55/75, being handicrafts, the appellants could not be held to be guilty of the fact that excise duty had not been paid or short-levied or short-paid or erroneously refunded because of either any fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder. These ingredients postulate a positive act. Failure to pay duty or take out a licence is not necessarily due to fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act. Suppression of facts is not failure to disclose the legal consequences of a certain provision. Shri Ganguly, appearing for the Revenue, contended before us that the appellants should have taken out a licence under Rule 174 of the said Rules because all the goods were not handicrafts and as such were not exempted under Notification No. 55/75 and, therefore, the appellants were obliged to take out a licence. The failure to take out the licence and thereafter to take the goods out of the factory gate without payment of duty was itself sufficient, according to Shri Ganguly, to infer that the appellants came within the mischief of Section 11A of the Act. We are unable to accept this position canvassed on behalf of the Revenue. As mentioned hereinbefore, mere failure or negligence on the part of the producer or manufacturer either for doubt as to whether licence was required to be taken out or where there was scope for doubt whether goods were dutiable or not would not attract Section 11A of the Act. In the facts and circumstances of this case, there were materials, as indicated to suggest that there was scope for confusion and the appellants believing that the goods came within the purview of the concept of handicrafts and as such were exempt. In the facts and circumstances of this case, there were materials, as indicated to suggest that there was scope for confusion and the appellants believing that the goods came within the purview of the concept of handicrafts and as such were exempt. If there was scope for such a belief or opinion, then failure either to take out a licence or to pay duty on that belief, when there was no contrary evidence that the producer or the manufacturer knew that these were excisable or required to be licensed, would not attract the penal provisions of Section 11A of the Act. If the facts are otherwise, then the position would be different. It is true that the Tribunal has come to a conclusion that there was failure in terms of Section 11A of the Act. Section 35L of the Act, inter alia, provides that an appeal shall lie to this Court from any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. Therefore, in this appeal, we have to examine the correctness of the decision of the Tribunal. For the reasons indicated above, the Tribunal was in error in applying the provisions of Section 11A of the Act. There were no materials from which it could be inferred or established that the duty of excise had not "been levied or paid or short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of the Act or of the rules made thereunder. The Tribunal in the appellate order has, however, reduced the penalty to Rs. 5,000/- and had also upheld the order of the confiscation of the goods. In view of the fact that the claim of the Revenue is not sustainable beyond a period of six months on the ground that these dhoop sticks, etc. were not handicrafts entitled to exemption, we set aside the order of the Tribunal and remand the matter to the Tribunal to modify the demand by confining it to the period of six months prior to issue of show cause notice and pass consequential orders in the appeal on the question of penalty and confiscation. were not handicrafts entitled to exemption, we set aside the order of the Tribunal and remand the matter to the Tribunal to modify the demand by confining it to the period of six months prior to issue of show cause notice and pass consequential orders in the appeal on the question of penalty and confiscation. The appeal is allowed to the extent indicated above and the matter is, therefore, remanded to the Tribunal with the aforesaid directions. This appeal is disposed of accordingly." 18. Counsel for the respondents Mr. Kinsuk Jain and Mr. Anuroop Singh supported the order of the Tribunal and contended that in view of the clarification which has been issued, the services which are rendered after 1-7-2003 are required to be under the taxing statute. 19. Mr. Jain has specifically emphasized on clauses 16 and 17 in Appeal No. 12/2009 which reads as under :- "16. The plea of the assessee, that Service Tax is playable only when it was collected from the Customers (Students) is not tenable as it is well settled by now that if a tax is payable under a statute then it has to be paid to the Government by the assessee from his own resources even if the same had not been collected from the customers/client and no exemption can be granted from payment of Service Tax on this ground. 17. As regards the plea of the assessee that two parallel proceedings cannot go together as the matter is sub judice before Hon''ble High Court of Rajasthan, I find that before the Hon''ble High Court, the assessee has inter alia challenged the legality of the Circular dated 5-11-2006 of CBEC New Delhi. Moreover Hon''ble High Court has not restrained the department in completing the adjudication proceedings by issue of stay order etc. It is also pertinent to stress that a substantial amount of Government revenue is due from the assessee and the assessee has been given suitable opportunity to present their case, in the circumstances, I have no other option but to decide the case." 20. He has strongly relied on show cause notice which was issued at Annexure-8 and para 9 which is reproduced hereinabove and contended that the view taken by the authority is just and proper. 21. He has strongly relied on show cause notice which was issued at Annexure-8 and para 9 which is reproduced hereinabove and contended that the view taken by the authority is just and proper. 21. He has relied upon the decision of the Supreme Court rendered in the case of W.P.I.L. Ltd., Ghaziabad v. Commissioner of Central Excise, Meerut, U.P. in Appeal (Civil) No. 4228-4229 of 1999 decided on 22-2-2005, [ 2005 (181) E.L.T. 359 (S.C.) ] wherein it has been held as under :- (6)["4a 72, 73, 82, 83, 84 or 85 Goods other than namely :- (a) Electrical stampings and laminations (b) Bearings (c) Winding Wires Nil If the said goods are used within the factory of production in the manufacture of goods specified in S. No. 4 above. [Notification No. 95/94-C.E., dated 25-4-1994]"] In our opinion, therefore, the authorities were in error in upholding the demand and in directing the appellant to pay excise duty. The learned counsel for the appellant is also right in relying upon a decision of this Court in Collector of Central Excise, Shillong v. Wood Craft Products Ltd., (1995) 3 SCC 454 ] . In that case, this Court held that a clarificatory notification would take effect retrospectively. Such a notification merely clarifies the position and makes explicit what was implicit. Clarificatory notifications have been issued to end the dispute between the parties. In view of the consistent policy of the Government of exempting parts of power driven pumps utilized by the factory within the factory premises, it could not be said that while issuing Notification No. 46/94 of March 1, 1994, the exemption in respect of said item which was operative was either withdrawn or revoked. The action was taken only with a view to rescinding several notifications and by issuing a composite notification. The policy remained as it was and in view of demand being made by the Department, a representation was made by the industries and on being satisfied, the Central Government issued a clarificatory Notification No. 95/94 on April 25, 1994. It was not a new notification granting exemption for the first time in respect of parts of power driven pumps to be used in the factory for manufacture of pumps but clarified the position and made the position explicit which was implicit. It was not a new notification granting exemption for the first time in respect of parts of power driven pumps to be used in the factory for manufacture of pumps but clarified the position and made the position explicit which was implicit. For the foregoing reasons, in our opinion, the appeals deserve to be allowed and are allowed accordingly. Deposit, if any, made by the appellant in pursuance of the order passed by the authorities below will be refunded to it." 22. He has also relied upon the decision of Supreme Court in the case of Union of India and Ors. v. M/s. Martin Lottery Agencies Ltd. 2009 (14) S.T.R. 593 : (Civil Appeal No. 3239/2009) wherein it has been held as under :- "30. Mr. Parasaran has. referred to Commissioner of Income Tax, Bombay and Ors. v. Podar Cement Pvt. Ltd. and Ors. [ (1997) 5 SCC 482 ] to contend that clarificatory statute would be retrospective in nature. On legal principle, there may not be any quarrel with the said proposition. Therein, however, this court was considering a case where two interpretations of Section 22 of the Income-tax Act were possible. It was opined that if one interpretation is possible and the same is clear, the next thing to be considered would be what would be the effect of the amendment. Referring to Benion''s Statutory Interpretation and G.P. Singh''s Principles of Statutory Interpretation, it was held : "An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the Constitution came into force, the amending Act also will be part of the existing law." It furthermore noticed the decision of the Constitution Bench in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas and Anr. [ (1968) 3 SCR 623 ] , wherein it was opined that an Explanatory Act is generally made to supply an obvious omission or to clear up doubts as to the meaning of previous Act. We are herein not concerned with such a situation. In W.P.I.L. Ltd., Ghaziabad v. Commissioner of Central Excise, Meerut, U.P. [ (2005) 3 SCC 73 ], whereupon again Mr. We are herein not concerned with such a situation. In W.P.I.L. Ltd., Ghaziabad v. Commissioner of Central Excise, Meerut, U.P. [ (2005) 3 SCC 73 ], whereupon again Mr. Parasaran placed strong reliance, this Court, while dealing with an exemption notification which is a piece of subordinate legislation, held : "Such a notification merely clarified the position and makes explicit what was implicit. Clarificatory notifications have been issued to end the dispute between the parties." 23. In third Appeal No. 18/2013 Mr. Singhi, mainly contended that there is suppression of fact that they are also having a right of Frenchizee and it was not disclosed. In that view of the matter it is contended that the show cause notice issued on 27-7-2006 was within limitation and the contention which has been raised by the appellant regarding the statute, the period cannot be extended in view of the suppression of the material fact : 24. He has also taken us to para 7 at page 74 and para 7 at page 80 which reads as under :- "As regards the question of time bar, the appellant has contended that the department knew about it in 2004 as is evident from the earlier show cause notice on 12-5-2004 demanding Service Tax on the same amount under "Commercial Coaching Services" which was confirmed under "Franchise Service" and the Order-in-Original 18/ST/2005, dated 7-6-2005 confirming the same was set aside vide Order-in-Appeal 373(MPM)ST/JPR-1/2005 dated 27-9-2005 because "Franchise Service" was not even mentioned in the show cause notice and the said Order-in-Appeal was upheld by CESTAT vide order no. 729/06-SM(BR), dated 4-5-2006. This point needs a bit of elaborate discussion. I find that even in the Show Cause Notice dated 12-5-2004 it was clearly brought out that the appellant did not declare the taxable value collected prior to 1-7-2003 in respect of "Franchise Service" rendered on or after 1-7-2003 in their ST-3 returns. Indeed the appellant did not supply the information in this regard even when sought by the department vide letter dated 13-11-2003 and it was only when they were summoned that they submitted that they were starting the process of collecting Service Tax amount on the fee received prior to 1-7-2003 for services provided on or after 1-7-2003 and the figures which were eventually supplied on 6-1-2004 again did not disclose the Franchise fee collected by them from the Franchisees. Thus, it is obvious that the appellant indulged in wilful suppression of fact with the intention of evading Service Tax. Once, this inference is drawn, the extended period of 5 years for raising demand becomes invocable and it is obvious that the impugned show Cause Notice dated 27-6-2006 was issued well within the period of 5 years from the relevant date. It is immaterial that earlier Show cause notice dated 12-5-2004 issued for a different category of service was not found sustainable, because so long as the impugned show cause notice dated 27-6-2006 was issued within the permissible period of 5 years from the relevant date, the show cause notice remains valid as it does not suffer from any legal infirmities. 7. Looking to the interest of Revenue that has undergone suffering and exercise of power by learned Adjudicating Authority not being faulted as has been held by Apex Court in Pradyumna Steel Ltd. - 1996 (82) E.L.T. 441 (S.C.) adjudication in terms of the impugned order cannot be said to be fatal because show cause notice dated 27-6-2006 intended to tax the escaped receipts. Reliance of learned Counsel on the decision in Twenty First Century Steel (P) Ltd. - 2010 (255) E.L.T. 524 (P&H) may not be profitable to him because Hon''ble High Court held that during pendency of a matter before CESTAT, issuance of show cause notice on penal consequence is unwarranted. But that is not the case of appellant in the present appeal as proceeding in this case was initiated on a different premise when suppression was detected and wrong application of law was made by Authorities below. Further reliance on the decision of Tribunal in the case of Paro Food Products - [ 2005 (184) E.L.T. 50 (Tri.- Bom.)] is also of no avail because the proceeding under appeal relating to taxability remained unchallenged while the single bench had no jurisdiction to sit in appeal over a classification issue and also when Service Tax demand involved was Rs. 22,48,432/- and the appellant has presently only challenged exercise of power without challenging legality of taxation. Therefore, adjudication by the impugned order is upheld and tax demand of Rs. 5,27,018/- is confirmed which shall follow interest." 25. Mr. Sameer Jain has strongly relied on clause 2 at page 64 which reads as under :- "2. 22,48,432/- and the appellant has presently only challenged exercise of power without challenging legality of taxation. Therefore, adjudication by the impugned order is upheld and tax demand of Rs. 5,27,018/- is confirmed which shall follow interest." 25. Mr. Sameer Jain has strongly relied on clause 2 at page 64 which reads as under :- "2. That the show cause notice is barred by limitation as the charge of withholding of material information with an intent to evade payment of duty is factually and legally incorrect and in fact the said charge is only invoked to cover up delay on the part of department itself, because : (i) As per ST-2 issued by the department itself, the word franchisee services are duly disclosed on the registration certificate. (ii) In the departmental show cause notice dated 12-5-2004, a demand of Rs. 22.48 Lacs was raised on the noticee, on account of non-payment of tax in the category of Commercial and Coaching Centre and thereafter was dropped in part by the Joint Commissioner on account of the fact that the show cause notice has wrongly categorized the service as Commercial Coaching Center services and further the service provider in the given case is franchisor. The said order-in-original was challenged before the Commissioner (Appeals) on merits as well as on applicability of circular and the entire demand including Rs. 5.27 Lacs was also dropped vide order dated 4-10-2005 against which appeal was preferred by the department and the same was set aside by the CESTAT order dated 23-5-2006." 26. We have heard counsel for the parties. 27. Before proceeding with the matter it will not be out of place to reproduce Article 265 which reads as under :- "265. Taxes not to be imposed save by authority of law. - No tax shall be levied or collected except by authority of law." 28. The assessee herein has entered into a concluded Contract much prior to coming into force of Service Tax law and in view of the clarification which has been issued in 2005 which clearly made out the case for the appellant inasmuch as the legislation has now used the language after 2005 which clearly states as under; "Taxable service means any service or to be provided to any person by a Commercial training or coaching classes in relation of the Coaching". 29. 29. In that view of the mater, it is very clear that prior thereto, there is authority interpretation of the provision as services which are referred to be provided in future was not covered. Even otherwise in view of the law Concluded Contract cannot be revived in view of subsequent development which will lead to a very odd situation with the assessee and he has to suffer in his business and has to face the breach of contract. 30. In that view of the matter when we have to interpret the taxing statute, we have to interpret Article 265 and the possibility of interpretation should not be avoided to be very impracticable for either of the side. 31. In that view of the matter, we make it clear that any payment of contract which are entered after 1-7-2003 will invite Service Tax and any contract which is concluded prior to 1-7-2003 will not invite imposition of Service Tax. 32. In that view of the matter, the issue is required to be answered in favour of the assessee. 33. Regarding the second issue, any contract of payment received prior to 1-7-2003 is not the condition for taxing. The tax will be imposed on the payment received thereafter. It is stated that the payment is already received prior to 1-7-2003. 34. In that view of the matter, the interpretation put forward by the department is required to be reversed. 35. In third appeal, regarding the second issue, in view of the fact that first issue is answered in favour of the assessee, the second issue will not arise. Therefore omission of any issue in the first notice will not come in the way of the department. 36. In that view of the matter, all the issues are required to be answered in favour of the assessee against the department. 37. The appeals stand allowed.