TMI Blog2019 (1) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of existence of two legal entities in such transactions is missing The appellants were an organization and hence the service provided to its own members cannot come within the scope of taxable services for the purpose of Finance Act, 1994. The demand of service tax in respect of membership fee, admission fee, establishment expenses, membership renewal fee etc. as also amount retained in connection with service provided by appellants to its members for earning ‘carbon credits’ will not be liable to service tax - demand set aside. Appeal allowed - decided in favor of appellant. - Appeal No.ST/430/2012 - FINAL ORDER No. 43192/2018 - Dated:- 12-12-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er alia proposing demand of aforesaid service tax liabilities with interest thereon and also imposition of penalties under various provisions of law. In adjudication, the Commissioner vide impugned order dt. 28.03.2012 confirmed the demands proposed in the SCN with interest thereon and also imposed equal penalties under Section 78 of the Finance Act, 1994. Aggrieved, appellants are before this forum. 2. Today, when the matter came up for hearing, on behalf of the appellants, Ld. Advocate Shri G. Natarajan made oral and written submissions which can be broadly summarized as under : (i) Demand under CAS. The demand under CAS has been confirmed on various amounts, such as Admission Fee, Membership Fee, Establishment Expenses, colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is provided by the appellant to its members and rightly classifiable under CAS, as per Section 65A of the Act, since the definition of CAS is more specific than BAS. As already submitted in the context of demand under CAS, this demand is also not sustainable. Once the activity is not liable to service tax under CAS, the same cannot be subjected to service tax, under any other category of service, as held in the case of Dr. Lal Pathlab Pvt. Ltd. Vs CCE 2006 (4) STR 527 (Tri-Del.) upheld vide 2007 (8) STR 337 (P H) The service is provided to M/s. Carbon Assets Services and the consideration is received in foreign exchange and hence would amount to export of service. iii) Ld. Advocate also submits that for a subsequent period relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of membership fee, admission fee, establishment expenses, membership renewal fee etc. as also amount retained in connection with service provided by appellants to its members for earning carbon credits will not be liable to service tax. Hence this being so, the ratio laid down by the Hon ble Jharkhand High Court in Ranchi Club Ltd. (supra) and by the High Court of Gujarat in Sports Club of Gujarat (supra) as also Division Bench of the CESTAT Chennai in Cosmopolitan Club Others (supra) will apply on all fours to the facts of this appeal also. The impugned order demanding service tax on the aforesaid activities of the appellant cannot then sustain and will require to be set aside, which we hereby do. 5. Appeal is allowed with consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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