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TMI Blog2017 (11) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sales Tax Department of the State Government and are also a registered 'Charitable Trust'. Show cause notice was issued to the assessee following the audit scrutiny of these assessee's documents including their Balance Sheet and Trial Balances, wherein it was found by the department that the assessee have collected charges and received various amounts from their members under various heads namely Health Club, Swimming Pool, Lawn, Hall, Billiards, Saloon Badminton, Table, Tennis, card Room, Guest Rood, Disco Tehque, Money subscription, Entrance fees, Membership fees, Development funds etc. but have neither paid service tax against these amount received nor filed any ST-3 Returns. The adjudicating authority confirmed the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. from which it was established that the demand of Rs. 15,41,486/- towards the sale of food and beverages which was not properly considered by the adjudicating authority therefore the Revenue's appeal deserves to be dismissed. As regard the appeal filed by the assessee, Ld. Counsel submits that the demand upheld by the Ld. Commissioner is on the amount of various subscription/fees paid by the members of club for availing various facility. On this issue, this Tribunal and various High Courts have held that doctrine of mutuality exist between the club and members, therefore the various facilities/services provided by the club to their member does not amount to provision of service, hence the same is not taxable. This issue is no longe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputation of differential service tax the value of Rs. 20,05,449/- in the ST-3 Return was considered whereas same should have been taken at Rs. 46,61,937/-, hence the service tax was excess calculated on Rs. 20,05,449/-. (iv) The sale account and sale account restaurant towards food and beverage was not correctly taken as all such receipts is towards sale of food and beverage which suffered VAT and the same is not taxable as held by the Commissioner (Appeals). (v) The show cause notice has taken the figures from un-audited trial balance whereas the audited balance sheet for the same year show a different figure which is a correct figure. From this account also there is an error in calculation. (vi) In the annexure "B" of show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Vs. CCE - 2008 (11) STR 53 (Tri.-Delhi) (iii) Ace Computer Education Vs. CCE - 2007 (6) ST 361 (Tri.-Del.) (iv) Rolex Logistics Pvt. Ltd. Vs. Commissioner of Service tax Bangalore - 2009 (13) STR 147 (Tri.Bang.) (v) Om Sai Professional Det. & Security Ser. P. Ltd. Vs. CCE Guntur - 2008 (10) STR 59 (Tri.-Bang.) (vi) Multitrack Cable Network Vs. Commr. Of Service Tax, New Delhi - 2008 (11) STR 374 (vii) Hindalco Industries Ltd. Vs. CCE Allahabad, 2003 (161) ELT 346(Tri.-Del.) (viii) Kirloskar Oil Engines Ltd. Vs. CCE, Nashik - 2004 (178) ELT 998 (Tri.-Mumbai) 5. Shri Roopam Kapoor, Ld. Commissioner (A.R.) answering the assessee's appeal submits that as regard the issue whether the consideration received by the club from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble provided that the documents evidencing such sale are available. In this context I find that the Appellant has submitted documents such as VAT Returns, Bar Room Sales Lagers, summary of Bar Room VAT Report, Specimen Bills etc. along with the Appeal. I am inclined to admit the same as evidence. There is merit in the contention of the Appellant and the Lower Adjudicating Authority also should have considered the same. I therefore hold that service tax is not leviable on the Appellant's Bar Room Sales of food, beverages liquor etc. I therefore set aside the demand of service tax of Rs. 15,41,486/- and interest thereon and appropriate penalties imposed on the Appellant towards such sales, in the Order-in-Original". From the above findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Considering the doctrine of mutuality therefore all said judgments are also in jeopardy, accordingly this Tribunal cannot take any decision on the merit of the case in the present legal status of the issue on merit. It is also observed that out of various judgments on the issue in hand two of the cases decided by the Hon'ble High Court of Jharkhand at Ranchi in the case of Ranchi Club Ltd. Vs. Chief Commr. Of C.Ex. & S.T., 2012 (26) STR 401 (Jhar.) & in the case of Cricket Club of India Vs. Commissioner of Service Tax, Mumbai 2015 (40) STR 973 (Tri. Mumbai) the civil appeal of the Revenue have been admitted and reported as Chief Commissioner Vs. Ranchi Club Ltd. 2013 (32) STR J34 (SC) and Commissioner Vs. Cricket Club of India Ltd. 2016 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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