M/S Bombay Market Art Silk Co-Op. Ltd vs Commissioner, Central Excise & Service ...

Appeal No.ST/11995/2013-DB; ST/MA(EXTN)/154412/2014 [Arising out of OIA No.CCEA-SRT-1/SSP-440/2012-13/U/S 35(A)-(Final Order), dt.29.03.2013, passed by Commissioner (Appeals), Central Excise & Service Tax, Surat]

M/s Bombay Market Art Silk Co-op. Ltd Appellant

Vs

Commissioner, Central Excise & Service Tax, Surat-I Respondent

Represented by:

For Appellant: Shri Jigar Shah, Advocate For Respondent: Dr. J. Nagori, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No 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 of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:17.06.2015

Order No. A/10811 / 2015 dt.17.06.2015

Per: P.K. Das

After hearing both the sides and on perusal of the records, we find that the Appellants are a Co-operative Society, registered under the Gujarat Co-operative Society Act, 1971. They were providing various services to their members. The Adjudicating authority confirmed the demand of Service Tax of Rs.48,55,594.00 alongwith interest and imposed penalties under various Sections of Finance Act, 1994. The details of the services and the demand of tax are as under:-

SN Name of taxable service Service Tax Amount 1 Club or Association Services Rs.42,72,850.00 2 Sale of space for advertisement Rs.1,79,375.00 3 Mandap Keeper services Rs.73,414.00 4 Renting of immovable property services Rs.4,79,367.00

Total:-

Rs.50,05,006.00

2. The learned Advocate submits that they have already discharged the Service Tax of Rs.1,49,412.00 out of Rs.50,05,006.00 and therefore, the present demand of tax is Rs.48,55,594.00, It is submitted that the demand of tax under the category of Club or Association Services is not sustainable in view of the decision of Hon'ble Gujarat High Court in the case of Sports Club of Gujarat Ltd Vs UoI 2013 (31) STR 645 (Guj.). The demand of Service Tax on Sale of space for Advertisement is beyond the competency of the powers of the Central Government. The demand of Service Tax on Renting of Immovable Property Services by show cause notice dt.28.07.2010 for the period from 01.06.2007 to 31.03.2010 is partly barred by limitation. The learned Advocate fairly submits that they have already paid the tax on Sale of Space for Advertisement, Mandap Keeper Service and Renting of Immovable Property Services, and therefore, they are not contesting the demand of tax. It is submitted that the penalty should not be imposed on this issue. He relied upon the decision of Hon'ble Punjab & Haryana High Court in the case of Care & Cure (P) Ltd Vs CCE Chandigarh-II  2015 (38) STR 225 (P&H).

3. On the other hand, the learned Authorised Representative for the Revenue reiterates the findings of Commissioner (Appeals). He submits that the Appellant is liable to pay tax on the other issues and therefore, penalty should be imposed on them.

4. We find that the demand of Service Tax on Club or Association Service is not sustainable in view of the decision of Hon'ble Gujarat High Court. The demand of tax on the other issues, the Appellants are not contesting the demand of tax, as they have already paid. Considering the facts and circumstances of the case, and the amount involved, we find that the tax on Renting of Immovable Property Service was imposed on the basis of retrospective amendment. Hon'ble Delhi High Court struck down the levy, which was retrospectively amended by the notification. Taking into consideration overall facts and circumstances of the case and as the Appellant already paid the tax, we find that it is appropriate to waive the imposition of penalties.

5. In view of the above discussion, the demand of Service Tax on Club or Association Service alongwith interest and penalty is set aside. The demand of Service Tax alongwith interest in respect of the other services are upheld and penalties are set aside. The appeal filed by the appellant is disposed of in above terms. The miscellaneous application for extension of stay order is dismissed as infructuous.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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