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TMI Blog2013 (5) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... ment about the applicability of service tax were quashed and set aside. The Hon'ble High Court also directed that the petitioners were required to make an application for recovery of Service Tax. The same was to be decided in three months from the date of receipt of the application and it was made clear that authority will not reject the same on the ground of delay or the same was made after a lapse of time. But the same was to be decided keeping in mind the decision taken by the Court In the said judgment and also the principles of unjust enrichment, if applicable. The appellants filed a refund claim of Rs. 2,24,925/- for the service tax paid for the period from December, 2002 to June, 2005 on 10.12.2009. The appellants further claimed that they were not liable to make the payment for the services rendered to their members as a "Health and Fitness Service" as their club cannot be termed as "Health Club and Fitness Center"; the members cannot be termed as any person and therefore, it cannot be said that their club is rendering taxable service to a person and therefore no service tax is leviable from them for allowing to use fitness equipment to their members for health. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to outsiders. It is his submission that in the absence of any service being provided to any client or customers, the services rendered is for the members and hence the principle of unjust enrichment will not be applicable. He would quote extensively from the judgment of Hon'ble High Court of Gujarat in their own case 2010 (20) STR 169 (Guj.). 5. Ld.Additional Commissioner (A.R.), on the other hand, would submit that if the refund is to be granted, it has to be first seen that whether the appellant has passed the incidence of Service Tax to any other person. It is his submission that that the appellant herein was directed to produce documentary evidence regarding non-passing of the Service Tax incidence to anyone which they failed to do so. It is his submission that in this context, the lower authorities orders were correct and needs to be upheld. 6. I have considered the submissions made at length by both sides and perused the records. 7. On perusal of the records, I find that the issue involved in this case is regarding refund of an amount of Service Tax which has been paid by the appellant under the category of mandap keeper. The said Service Tax liability has been impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt utilizing its services. Amongst other services, the Finance Act, 1997 made the services rendered by mandap keepers liable to service tax. 10. Looking to the facts of the case, a reference to some of the amended provisions of Section 65 of the Finance Act, 1994 are required to be considered. It reads as under; (19) Mandap means any immoveable property as defined in Section 3 of the Transfer of Property Act, 1882 and includes any furniture, fixtures, light fittings and floor coverings therein let out for consideration for organizing any official, social or business function; (20) Mandap Keeper means a person who allows temporary occupation of a mandap for consideration for organizing any official, social or business function. (41)(p) Taxable Service means any service provided to a client by a mandap-keeper in relation to the use of a mandap in any manner including the facilities provided to the client in relation to such use and also the services, if any, rendered as a caterer. 11. A conjoint reading of the above provisions of law goes to show that the services provided to a client, including the facilities provided in relation to its use and also the services, if any, render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l refer to the meaning of the term client as defined in some of the leading dictionaries. In Concise Oxford Dictionary, the word client is defined as a person using the services of a lawyer, architect, social worker or other professional person. Whartons Law Lexicon, 1976 Edn. Defines client as a person who seeks advice of a lawyer or commits his cause to the management of one, either in prosecuting a claim, or defending a suit in a Court of justice. In the English Solicitors Act, 1870, (S.3) client is defined as Client includes any person who, as a principal or on behalf of another person, retains or employs, or is about to retain or employ, a solicitor; and any person who is or may be liable to pay the solicitors Bill of costs, for any services, fees, costs, charges, or disbursements. In Strouds Judicial Dictionary, it is defined as any person who, as a principal or on behalf of another person, retains or employs or is about to retain or employ, a solicitor. In Corpus Juris Secondum, it has been defined a client is one who seeks advice of an attorney or retains him to prosecute or defend a suit. A client is one who applies to a lawyer or counselor for advice and direction in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the applicability of service tax, there should be existence of two sides/entities, viz. transaction as against consideration. In a members club there is no question of two sides. Members and Club both are the same entity. One may be called as principal when the other may be called as agent. Therefore, such transaction, in between themselves, cannot be recorded as income, sale or service. 20. By relying upon the bye-laws of the clubs, a ground is sought to be raised that since the clubs also take on lease or hire moveable or immoveable property for its different purposes, they are liable to pay service tax. We have gone through the bye-laws and also the relevant rules and regulations of the Clubs and do not find any provision that the properties and/or the facilities, those are being made available by the members to themselves could be extended to third parties for any consideration whatsoever. 21. The members of the clubs are allowed exclusively to participate in the services rendered by the clubs and no third party is allowed to participate in the same. Even, the facilities and amenities of the clubs are not extended to any third party who, of course, may come as a guest and/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to a categorical conclusion that the members of the club cannot be seen separately as a client or customer and the mandap or the club is one and the same. Since the Service Tax is sought from the club and it has been set aside at the show cause notice stage, by the Hon'ble High Court, it cannot be said that said club has passed on the incidence of Service Tax liability to its members, as the members are not separate from the club, is the ratio of their Lordships. If that be so, it cannot be said that by claiming the refund from self, the club itself will be unjustly enriched. Services rendered to self cannot be equated with the services rendered to a client or customer. 12. In my view, the appellant has passed the hurdle of unjust enrichment and I hold that the provisions of Section 12B will not be applicable in this case as the club and the members are not separate and are one as held in this case by Hon'ble High Court, the question of producing any other evidence in support of non-passing of Service Tax liability does not arise. 13. Accordingly, in the facts and circumstances of this case, I set aside the impugned order and allow the appeals with consequential relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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