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2015 (11) TMI 165 - CESTAT MUMBAI

2015 (11) TMI 165 - CESTAT MUMBAI - 2015 (40) S.T.R. 493 (Tri. - Mumbai) - Demand of service tax - Whether the appellant is required to discharge the service tax liability on an amount collected by them for conducting aerobics and yoga classes and whether extended period can be invoked - Held that:- Appellant had not co-operated with the lower authorities and did not produce any documents in order to arrive at the correct service tax liability. The appellant had been claiming that they had indic .....

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d Fitness Centre was never in doubt as they themselves registered under the same category and discharged the service tax liability on the amounts received by them for Gymnasium used by their members. It would be incorrect to say that they were not aware the services rendered by them would not fall under the category of Health and Fitness Service. - health and fitness centre is including a hotel or resort providing health and fitness service. Undoubtedly the appellant is a charitable institution .....

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s appeal is directed against Order-in-Appeal No. SB(73)73/STC/2010 dated 16.06.2010. 2. Relevant facts that arise for consideration are on scrutiny of ST-3 returns filed by the appellant for half yearly period ending March 2006, it was noticed that an amount of ₹ 38,67,671/- was shown as bill for exempted services but no tax was indicated under which exemption was availed. Revenue authorities sought details regarding such services. Appellant did not provide any information or data or produ .....

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ments it was noticed that appellant had not discharged the service tax liability on the amounts received by them for the entire period for the services of aerobics and yoga. As the said amount was not indicated in the return, another show-cause notice dated 19.10.2007 was issued by invoking extended period for demand of service tax, interest thereon and for imposition of penalties for the period 16.8.2002 to 30.09.2005. The adjudicating authority after considering the submissions made by the app .....

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n both the show-cause notice and the replies submitted by them. It is his submission that as regards the service tax liability on an amount received by them for providing aerobics and yoga classes he would submit that these services are not for physical well being of any individual and accordingly could not fall under the category of Health and Fitness Centre. He would submit that the first show-cause notice dated 16.04.2007 was issued for the demand of service tax within the limitation period .....

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the exempted services rendered by the appellant and the appellant had bonafide impression that the amounts collected by them for aerobics and yoga are not taxable. He would rely upon the Judgements in the case of M.N. Dastur Co. Ltd. vs. UOI - 2006 (4) STR 3 (Cal.) and Nizam Sugar Factory 2006 (197) ELT 465 (SC). 4. Learned D.R. on the other hand would submit that the claim of the appellant that aerobics and yoga will not be covered under the Health and Fitness Service is incorrect. He would sub .....

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he 2nd show-cause notice was issued within two months of the receipt of the documents and details from the appellant. Hence invocation of the extended period was correct. 5. In rejoinder the learned Counsel would submit that in case of Osha International Foundation Neo Sannyas Foundation (supra) this Bench has set aside the demand of the service tax liability on the extended period and the same ratio will apply in this case also. 6. We have considered the submissions made by both sides and perus .....

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rect and is to be rejected and this Bench in the case of Osha International Foundation Neo Sannyas Foundation (supra) has held that meditation course and yoga classes would fall under Health and Fitness services. We find no reason to deviate from such a view already taken by the Tribunal. Accordingly, on merits we find appellant has no case. 7.1 As regards the extended period of limitation invoked by show-cause notice dated 19.10.2007, we find that appellant had not co-operated with the lower au .....

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w:- (c)(i) It has been contended by the appellants that there was no suppression by them since they had filed the returns regularly and also submitted the copies of Balance Sheets. They had received a notice for coverage under Mandap Keeper dated 20.01.2002 in reply to which they had filed copies of ills, balance sheets for the period 98-99 to 2000-2001. Thereafter, vide letter 23.04.2003, they furnished copy of audited accounts for the year ending 31.03.2002. However, I find that they have not .....

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that the contention of the appellants that they filed returns is not sufficient to support their stand that there was no suppression on their part, because the figures related to the disputed activities, i.e. Yoga and Aerobics were not shown as taxable/misdeclared as exempted. Only after the department called for additional information, like balance sheets and the details of so called exempted services, this fact has come to light. There has been also no correspondence seeking clarification by t .....

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