Custom, Excise & Service Tax Tribunal
C.P. Club Ltd vs Cce Nagpur on 11 March, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. ST/323/10 Mum
Arising out of Order-in-Original No. 08/2010/C dated 27.1.2010 passed by the Commissioner of Central Excise, Nagpur.
For approval and signature:
Shri. M.V. Ravindran, Member (Judicial)
Shri. P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No.
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
C.P. Club Ltd.
:
Appellant
Versus
CCE Nagpur
Respondent
Appearance None for appellant Shri S.V. Nair, Supdt (A.R.) For Respondent CORAM:
Shri. M.V. Ravindran, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical) Date of Hearing : 11.03.2015 Date of Decision : 11.03.2015 ORDER NO.
Per : M.V. Ravindran This appeal is directed against order in original number 08/2010/C dated 27/01/2010.
2. When this matter was called out none appeared on behalf of the appellant. With the assistance of the learned departmental representative we perused the file and find that the appeal could be disposed of even in the absence of any representation from the appellant. Accordingly we take up the appeal for disposal.
3. The relevant facts that arise for consideration are that appellant herein is registered under service tax for the category of mandap-keeper, Health club and fitness centre and club or Association services. The appellant is providing to the members and others various facilities and services for consideration of monetary amounts. During the scrutiny of records it was noticed that the appellant did not discharge service tax liability on the amounts received towards the entrance fees, subscription from members, miscellaneous charges, locker charges donation etc. It was also noticed that appellant is discharging service tax liability on the amount of entrance fees received by them. The show cause notice was issued to the appellant for a short payment of service tax liability directing them to show cause as to why the amount should not be recovered from them along with interest and penalties be imposed. The appellant contested the show cause notice on merits by submitting that the tax liability does not arise on them, the show cause notices blatantly time barred and that they were under bona fide belief regarding the liability to pay service tax on these amounts collected by them. The adjudicating authority did not agree with the contentions raised by the appellant. The adjudicating authority confirmed the demand and also imposed penalties and demanded interest on the amount of service tax liability confirmed.
4. We perused the grounds of appeal taken by the appellant in the memorandum of the appeal. It is the case of the appellant that service tax liability will not arise on the subscription fees, the donation, as these amounts are collected from the members and as also the amount charged for sale of items like food and beverages would not be taxable. The appellants also relied upon various case laws for this proposition.
5. Learned departmental representative would reiterate the findings of the adjudicating authority.
6. We have considered the submissions made by the revenue and the perused the records. The demand of the service tax in this case is based on the ground that appellants having provided taxable service under the category of club or Association services have not discharged the service tax liability properly.
7. At the outset without going into the detailed merits of the case, we find that the issue involved in this case is directly covered by the judgement of Honourable High Court of Gujarat in the case of Sports Club of India wherein their Lordships have struck down the provisions of section 65 (25A), section 65 (105) (zzze) of the Finance Act, 1994 in respect of the leviability of service tax by the club on its members. This ratio has been followed by the Tribunal in the case of Matunga Gymkhana in final order number A/1800 1803/14/CSTB/C I dated 18/12/2014. The ratio of the decisions will squarely apply in this case and in the favour of the appellant.
8. In view of the authoritative judicial pronouncement on similar issue respectfully following the same, we hold that the impugned order is unsustainable and is liable to be set aside and we do so. The impugned order is set aside and appeal is allowed with consequential relief if any.
(Dictated in open Court) (P.R. Chandrasekharan) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk ??
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