TMI Blog2013 (8) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... ry was initiated against Patanjali Yogpeeth Trust, without any reference to the earlier correspondence of the sister trust with the department. - prima facie neither longer limitation period of five years can be invoked nor penalty under Section 78 of the Finance Act would be excisable. While the department has a case on merit, the bulk of the demand would be time barred as only normal limitation period would be available. - Pre deposit ordered to be made for Rs. 40 Lacs - stay granted partly. - Appeal No. 55429 of 2013 - - - Dated:- 3-5-2013 - Ms. Archana Wadhwa and Shri Rakesh Kumar, JJ. For the Appellant: S/Shri B.L. Narasimhan and Manish Gaur, Advocates For the Respondent: Shri Govind Dixit, Authorized Representative (DR) ORDER Per. Rakesh Kumar :- The facts leading to this appeal and stay application are, in brief, as under. 1.1 The appellant are a trust founded in Delhi on 4th February 2005 for the purpose of Research on Yoga. Acharya Bal Krishan is the Secretary General of this trust. Since 2006, this trust is organizing yoga camps at various places all over India which are residential as well as non-residential. For both non-residential yoga cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant (PYT), who since 2006 are organizing the same courses, were under bonafide belief that the services provided by them do not attract any service tax and that in view of this, neither longer limitation period under proviso to Section 73 (1) would be attracted nor penalty under Section 78 would be attracted. However, the Commissioner by the impugned order confirmed the entire service tax demand, as mentioned above, invoking extended period under proviso to Section 73 (1) alongwith interest on it at the applicable rate under Section 75 and beside this, imposed penalty of Rs. 200/- per day under Section 76, penalty of Rs. 4,94,33,027/- under Section 78 of Finance Act, 1994 and also the penalty under Section 77 ibid. Against this order of the Commissioner, this appeal has been filed alongwith stay application. 2. Heard both the sides in respect of stay application. 3. Shri B.L. Narasimhan, Advocate, the learned Counsel for the appellant, pleaded that the services provided by the appellant are not taxable under Section 65 (105) (zw) readwith Section 65 (51) and 65 (52) of the Finance Act, 1994, that the word yoga appearing in the definition of health and fitness service as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s activity is squarely covered by the definition of health and fitness service as given in Section 65 (51), as this definition specifically covers the service for physical well-being, such as sauna and steam bath, Turkish bath, solarium, spas, reducing or slimming salons, gymnasium, yoga, meditation, massage etc., that the various residential and non-residential courses being organized by the trust are meant for general physical well-being and the same cannot be said to be specifically meant for curing a particular disease, that no evidence in this regard has been led by the appellant, that the appellant s plea that in respect of residential courses the amount being charged was only for food and residence and that the instructions in yoga in respect of yoga were free, is not acceptable, as the amount were being charged for the yoga courses and in terms of the provisions of Section 67 of the Finance Act, the service tax is to be charged on gross amount charged which would include the charges for lodging as well as food, that the appellant s plea with regard to the demand being time barred is also not acceptable as the entire correspondence with the department during 2004-2005 refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, which are a trust, are covered by the definition of health, club and fitness centre as this definition covers any establishment including a hotel or a resort providing the health and fitness service. We also of prima facie view that there is no substance in the appellants plea that the amounts being charged by them in respect of residential courses are not for yoga courses but are the amount charged only for food and accommodation, and for this reason, no service tax is payable, as in terms of provisions of Section 67, the service tax on this services is chargeable on the gross amount charged, which, in any case, would include even the expenses incurred on food, accommodation as well as for organizing the courses. 7. However, we find that there is substance in the appellant s plea with regard to limitation. The present appellant Patanjali Yogpeeth Trust (PYT) as well as DYM trust, both are headed by same person Acharya Bal Krishan and there is no dispute that prior to 2006 these very courses were being organized by DYM trust. The appellant have produced copies of the correspondence of DYM with Central Excise authorities during 2004 and 2005. Ongoing through this corresponden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not taken into account the consideration received by them for rendering taxable service for the purpose of payment of service tax and thereby refrained from paying their tax liabilities. The non-payment of service tax on the above said services was a deliberate, conscious attempt to suppress the material fact of receipt of consideration against services rendered by the notice so as to avoid payment of due service tax as envisaged under Section 68 in utter disregard of Law. Thus, such an act in defiance of law had rendered them liable for stringent penal action in terms of provisions of Section 78 of the Act, ibid for suppression, concealment and furnishing of incorrect value of taxable service with an intent to evade payment of service tax. In the light of above said discussion, the notice is liable for penalty under Section 78 of the Finance Act, 1994. 8. From the observations of the Commissioner, it is seen that there is no reference to the correspondence of the DYM trust with the department during 2004 and 2005, while it is not disputed that both the trusts are headed by the same person and during the period prior to 2006, the same yoga courses were being organized by DYM T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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