The Maharashtra Chamber Of Housing ... vs Commissioner Of Central Excise, ...

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appeal No. ST/115/11

(Arising out of Order-in-Appeal No. MI/AV/375/2010 dated 29.11.2010 passed by Commissioner of Central Excise, Customs & Service Tax (Appeals), Mumbai)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, 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?

The Maharashtra Chamber of Housing Industry Appellant Vs.

Commissioner of Central Excise, Customs & Service Tax, Mumbai Respondent

Appearance:

Shri S.S. Gupta, C.A. for appellant Shri A.B. Kulgod, Asst. Commissioner (AR) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of Hearing: 10.07.2015 Date of Decision: 10.07.2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal MI/AV/375/2010 dated 29.11.2010.

2. Heard both sides and perused the records.

3. The issue involved in this case is regarding the demand of service tax liability under the category of Business Auxiliary Service. Appellant herein organized an exhibition during October 2004 to December 2004 and charged an amount as fees from their members as well as non-members. Revenue authorities are of the view that the appellant is liable to discharge the service tax liability on the amounts collected by them. Accordingly, a show-cause notice dated 23.08.2006 was issued by invoking extended period of limitation demanding service tax, interest thereof and for imposition of penalties. Appellant contested show-cause notice on merits claiming that the service tax liability does not arise during the material period as has been raised in the show-cause notice. After following due process of law, the adjudicating authority did not agree with the contention raised and confirmed the demands raised along with interest and also imposed penalties. On appeal filed by the appellant, the first appellate authority confirmed the service tax liability along with interest but set aside the penalties imposed on the ground that the appellant has paid the service tax liability and there is no malafide intention as the services were rendered when the services had just been introduced of service tax liability on the Business Auxiliary Service.

4. Learned C.A. would draw our attention to the facts of the case and submit that the entire issue is demand of service tax liability under the category of Business Auxiliary Service which were rendered during Oct 2004 to December 2004 is time barred as the show-cause notice is issued on 23.08.2006. On merits it is the submission that appellant has conducted the Exhibition for their members as well as non-members. It is his submission that the amount collected from the members is not taxable as per the decision in the case of Karnavati Club Ltd. v. Union of India - 2010 (20) STR 169 (Guj) and has been upheld by the Honble Apex Court as reported in 2010 (20) STR J44(SC). He would also submit that the judgement of the Honble High Court of Jharkand in the case of Ranchi Club Ltd. - 2012 (26) STR 401 (Jhar.) will also support his case.

5. Learned DR on the other hand would submit that the appellant had never raised the question of limitation before the lower authorities instead before the first appellate authority the appellant sought closure of the entire issue relying upon the provisions of Section 73(3) of the Finance Act, 1994.

6. After considering the submissions made by both sides, we find that the issue as correctly pointed out by both sides is as to the tax liability under Business Auxiliary Service for the exhibition conducted by the appellant during October 2004 to December 2004 for their members and non-members. We find that there is no dispute as to the fact that the appellant is covered under the service tax liability of Business Auxiliary Service during the relevant period.

6.1 It is also not disputed that the appellant has received an amount from the members of the association as well as from non-members. We find strong force in the contention raised by the learned Counsel as regards the service tax liability on the amount received from the members, no tax liability arises and is covered by the judgement of Honble High Court of Gujarat in the case of Karnavati Club Ltd (supra) and by the Honble High Court of Jharkand in the case of Ranchi Club Ltd. (supra). To that extent we hold that the appeal needs to be allowed and the impugned order needs to be set aside and we do so. Consequently the liability of interest and penalty also needs to be set aside; as the appellant is an association of Houusing Industry and conducts various exhibitions for benefit of builders etc. who are members.

6.2 As regards the demand raised on the amount received by the appellant from the non-members we find that the service tax liability does arise. On a specific query from the Bench, the learned C.A. draws our attention to the fact that service tax liability on the amount received of Rs.4,18,506/- which is annexed at page 217 of the appeal memo. We uphold the demand of Rs.4,18,506/- as also the interest thereof however as the issue involved in this case of taxability during the period when the tax was introduced on the services, by invoking provisions of Section 80 of Finance Act, 1994, we set aside penalty levied under various Sections in the order-in-original and upheld by impugned order.

6.3 As regards the submission made by the C.A. on limitation, we find that since the question of limitation was not raised before both the lower authorities, we hold that the same cannot be gone into by us in the 2nd appeal proceedings, in this case

7. Appeal is disposed of as indicated herein above.

(Dictated in Court)

(Raju) Member (Technical) (M.V. Ravindran) Member (Judicial)

nsk

??

??

??

??

1 6