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2018 (12) TMI 1777 - CESTAT KOLKATA100% EOU - Classification of services - Health Club and Fitness Centre services or not - business of development of software as a 100% EOU operating under the STPI scheme - HELD THAT:- The Trust has been constituted for the welfare of the employees in 1994 much before the period of dispute impugned herein. Both Trust and the appellant company cannot be said to be one and the same entity, inasmuch as both are separately assessed to Income Tax and both have been granted separate service tax registrations which is a fact on record. Both the authorities below have taken note of the fact that subject service (for gym, health centre, etc) has actually been rendered by the Trust and it is only the premises where gym is located, belongs to the company, which should not be the mere criterion for ascertaining the service provider - In fact, the entire contribution made by the members, on which the instant demand has been raised, has been received by the Trust and not the Company. As per Section 65(7) of the Finance Act, 1994, the term ‘assessee’ has been defined to mean the person liable to service tax and includes its agent. As per the Rules, the person liable to pay service tax is the person who has provided the taxable services, i.e. the service provider. It is not disputed that the service has actually been provided by the Trust, who subsequently got registered with the department and started discharging service tax liability which fact has been noted by the Ld. Asst Commissioner in his order dated 28.11.2008, based on which the demand on appellant company has been dropped. The demand of service tax, interest and penalty by allowing the instant appeal with consequential relief - appeal allowed - decided in favor of appellant.
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