TMI Blog2014 (12) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act,2005 to the extent that the said provisions purport to levy service tax in respect of services purportedly provided by the petitioner club to its members, was declared as ultra vires. - order passed by the Commissioner of Service Tax is required to be set aside - Decided in favour of assesse. - SPECIAL CIVIL APPLICATION NO. 30148 of 2007 - - - Dated:- 15-12-2014 - MR. AKIL KURESHI AND MR. VIPUL M. PANCHOLI, JJ. MR MITUL K SHELAT, ADVOCATE FOR THE PETITIONER MR YN RAVANI, ADVOCATE FOR THE RESPONDENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitioners have challenged the vires of Section 65(25a) and also 65 (105) (zzze) of the Finance Act, 1994 as amended by Finance Act, 2005 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the duty demand with penalty and interest as mentioned above. The petitioners have, therefore, separately challenged such order in original. 3. Learned counsel, Shri Shelat for the petitioners pointed out that initially the show cause notice was issued basing the recoveries on Section 65 (19) of the Finance Act, 1994, however, realizing that such demand would not be maintainable under said provision, separate show cause notice was issued why the services provided by the petitioner no.1 society to its members be not classified as one under Club or Association and accordingly chargeable under Section 65 (25a) of the Finance Act, 1994. It was on this basis that the Commissioner of Service Tax in the impugned order confirmed the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. As far as their submission that clubs or associations as defined under the Finance Act, 1994 cover only recreational or social associations, I find no such restriction. I, therefore, hold that the service provided by M/s. GES is actually a club or association service which is taxable from 16.06.2005. The service tax liability for the services rendered by M/s Green Environment Services Cooperative Society Ltd from 16062005 to 31032006 comes to ₹ 71,43,582/( ₹ 70,03,512/service tax plus ₹ 1,40,070/Education Cess). 4. Learned counsel, Shri Shelat pointed out that the provision of Section 65 (25a), insofar as it pertains to the service provided by a society to its members, came to be declared as unconstitutional by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench of Jharkhand High Court. In the result, these petitions are allowed and it is hereby declared that Section 65(25a), Section 65(105) (zzze) and Section 66 of the Finance (No.2) Act,1994 as incorporated / amended by the Finance Act,2005 to the extent that the said provisions purport to levy service tax in respect of services purportedly provided by the petitioner club to its members, to be ultra vires. Rule is made absolute with no order as to costs. 5. The issue being covered by the said decision and the ratio laid down therein and such provision having been declared unconstitutional to the extend noted above, impugned order dated 9.10.2007 passed by the Commissioner of Service Tax is required to be set aside. 6. Befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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