2019 (4) TMI 1812 - AT - Service Tax

Classification of services - Club or Association Service or not - commencement and carry on copyright business in sound recording - HELD THAT - From the provisions of Section 33 33A and 34 of the Copyright Act 1957 the scheme in which the appellants are operating is quite evident. From the second proviso to Section 33(1) it is quite evident that grant of business license in respect of certain category of works could be done only through the registered copyright society. Thus Section 33 (1) provides for registration of the said societies - From the provisions of Section 18 and 19 it is quite evident that every owner of the copyright could have assigned the right to any other person by way of writing subject to the terms and conditions as may stated by the assignor. But once assigned in respect of respect of the right assigned the assignee becomes the owner of the right to the extent of assignment. In the present case the copyright owners have assigned the right in copyright to the appellant society registered under the Copyright Act. The appellant society is thus administering the right of owner assigned to it as if it is the owner of the copyright by issuance of the license for utilization of the copyrighted material. They in terms of section 34 of the Copyright Act collect the fees in pursuance of the licenses issued by it under Section 30 to the users of the copyrighted material and share the same with the owner of copyright after deducting its expense. The appellants are rendering Copyright Services as the assignee of copyright by the owner to them in terms Section 18 as a society registered under Section 33. In fact they are paying service tax under that category. For payment of the service tax entire amount collected by the appellants from the users is taken for determination of the taxable value and service tax discharged on that. Having done so there are no merits in the demand of service tax under the category of Club or Association Services . Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Classification of services provided by the appellant.
2. Applicability of Service Tax under the category of "Club or Association Service".
3. Demand of Service Tax, interest, and penalties.
4. Application of the doctrine of mutuality.
5. Cum tax benefit and procedural compliance.

Detailed Analysis:

1. Classification of Services Provided by the Appellant:
The appellant, a registered copyright society under the Copyright Act, 1957, argued that their services fall under the category of "Copyright Services" and not "Club or Association Service". The Commissioner had classified their services under "Club or Association Service" as per Section 65(25a) and Section 65(105)(zzze) of the Finance Act, 1994. The appellant contended that they administer copyrights and collect license fees, which are subject to tax under "Copyright Services" from 1-07-2010.

2. Applicability of Service Tax under the Category of "Club or Association Service":
The Commissioner imposed Service Tax under "Club or Association Service" for the periods 2010-11 to 2012-13 and 2013-14. The appellant argued that they are not a club or association but a copyright society, and their activities are specifically covered under "Copyright Services". They cited previous tribunal decisions and legal precedents to support their claim that the introduction of a new taxable category ("Copyright Services") precludes taxation under an earlier category ("Club or Association Service").

3. Demand of Service Tax, Interest, and Penalties:
The Commissioner confirmed demands totaling Rs. 8,32,17,806/- and Rs. 4,20,53,684/- for the respective periods, along with interest and penalties under Sections 76 and 77 of the Finance Act, 1994. The appellant challenged these demands, arguing that the entire consideration received for administering copyrights is already taxed under "Copyright Services". They also contended that there was no failure in filing returns or paying taxes, making the penalties unsustainable.

4. Application of the Doctrine of Mutuality:
The appellant argued that their activities fall under the doctrine of mutuality, which exempts transactions between members of a mutual association from taxation. They cited the decision in "Calcutta Club" and other cases where the principle of mutuality was upheld. The tribunal noted that the issue of mutuality would only apply if the services were classified under "Club or Association Service".

5. Cum Tax Benefit and Procedural Compliance:
The appellant argued that the Commissioner erred by not allowing the cum tax benefit while determining the taxable value. They also stated that the demand for late fees under Rule 7C of the Service Tax Rules, 1994, was not sustainable due to their compliance with procedural aspects.

Tribunal's Decision:
The tribunal found that the issue had already been decided in favor of the appellant in a previous case (2017 (3) GSTL 523 (T-Mum)), where it was held that the appellant's activities are covered under "Copyright Services" and not "Club or Association Service". The tribunal reiterated that the appellant, being a registered copyright society, administers copyrights and collects fees, which are subject to tax under "Copyright Services". The tribunal also noted that the statutory mandate under the Copyright Act precludes the classification of these services under "Club or Association Service".

Conclusion:
The appeals filed by the appellant were allowed, and the impugned orders were set aside. The tribunal concluded that the appellant's services are correctly classified under "Copyright Services" and not "Club or Association Service". Consequently, the demands for Service Tax, interest, and penalties under the latter category were invalidated.