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Commissioner of Central Excise, Nagpur Versus M/s. Eastern Sports Club And (Vice-Versa)

2017 (11) TMI 352 - CESTAT MUMBAI

Levy of tax - sale of food and beverages - documentary evidence - Revenue's challenge is only on the ground that the assessee could not produce the documentary evidence which is required for not taxing the consideration towards the sale of food and beverages as per the Board Circular B1/6/2005-TRU dt. 27.07.2005 - Held that: - the Commissioner (Appeals) had dropped the demand of ₹ 15,41,486/- on account of sale of food and beverages, considering the documents such as VAT Returns, Bar Room .....

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her consideration receipt by the club from their members is taxable or otherwise? - Held that: - Considering the doctrine of mutuality therefore all said judgments cited 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 - As regard the quantification error pointed by the assessee in their grounds of appeal. We find that there appears to be apparent errors and if the same is rectified the demand woul .....

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assessee is registered for the payment of service tax under "Club or Association services' and "Renting of Immovable Property Services". They also registered with the 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 .....

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ecovery of interest under Section 75 of the Finance Act, 1994, imposed penalties under Section 76,77, & 78 of the Act. Being aggrieved by the order-in-original, the assessee filed appeal before the Commissioner (Appeals), who set aside the demand of Service tax amounting to ₹ 15,41,486/- towards the sale of food and beverages. Since the Board has clarified in its Circular No. B1/6/2005-TRU dt. 27.07.2005, however demand of ₹ 8,25,564/- was upheld under 'Club or Association Se .....

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dence. In the present case, assessee could not submit any sale bills pertaining to sale of liquor etc. therefore in absence of documentary evidence the service tax demand cannot be dropped. 4. On the other hand, Shri P.V. Sadavarte Ld. Counsel for the assessee countering the Revenue's submission in their appeal submits that the Commissioner (Appeals) dropped the demand after considering the various evidences such as Bills, Books of Accounts etc. from which it was established that the demand .....

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etween 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 longer res-integra in view of following judgments. (a) Gondwana Club Vs. Commissioner of Customs & C. Ex. Nagpur[2016(42) S.T.R. 895(Tri. Mum)] (b) Sangam India Ltd Vs. Commissioner of Central Excise and Service Tax, Jaipur-II[2017-TIOL-1966-CESTAT-DEL] (c) Residency Club Vs. Commissioner of C. Ex. .....

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ga Gymkhana vs. Commissioner of Service Tax, Mumbai[2015(38)S.T.R. 407(Tri. Mumbai)] Alternately, he submits that the calculation of demand of ₹ 8,25,564/- is incorrect on the following points: (i) The benefit of cum duty value was not given which was otherwise available in terms of Section 67 supported by following judgments. (i) Commissioner Vs. Advantage Media Consultant - 2009 (14) STR J49 (S.C.) (ii) Kopran Ltd. Vs. Commissioner of C.Ex. Raigad - 2011 (23) STR 627 (Tri.-Mumbai) (ii) T .....

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erage 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 notice demand on renting of immoveable .....

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rt Services and the demand on this count is not sustainable. He submits that on consideration of the above apparent mistakes, the demand stand reduced to ₹ 55,442/. He submits that the demand is time barred on the ground that there is a correct and true disclosure of all the transaction in the annual account of the assessee and the same was statutorily audited. The financial statement was duly filed with the office of Charity Commissioner. In respect of all consideration received by the as .....

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(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, N .....

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ferred to the Larger Bench of the Supreme Court in the case of State of West Bengal & Others Vs. Calcutta Club Limited in Civil Appeal No.4184/2009. Therefore all the decisions cited by the Ld. Counsel are in jeopardy and the same cannot be relied for taking any decision. 6. We have carefully considered the submissions made by both the sides and perused the records. As regards the Revenue's appeal No. ST/86794/13 in respect of dropping of demand of ₹ 15,41,486/-. We find that as pe .....

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ppellant's contention that the Board has clarified in its Circular No. B1/6/2005-TRU dt. 27/07/2005 that the amount charged by a club to its members for sale of items such as food or beverages would not be taxable 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 a .....

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ioner (Appeals) had dropped the demand of ₹ 15,41,486/- on account of sale of food and beverages, considering the documents such as VAT Returns, Bar Room Sales Leger, Summary of Bar Room VAT Report, Specimen Bills etc. therefore it cannot be said that the Ld. Commissioner (Appeals) had dropped the demand without any basis. The documents referred in the finding of the Ld. Commissioner (Appeals) are more than sufficient to establish the receipt towards sale of food and beverages. Therefore, .....

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lub Limited in Civil Appeal No. 4184/2009 the matter was referred to the Larger Bench of the Supreme Court. In this position, the judgment of the Hon ble Supreme Court in the case of Young Mens Indian Association (supra) does not remain as a goods law and it stands departed. It is observed that the judgment of the Hon ble Supreme Court in the case of Young Mens Indian Association (supra) was the genesis of all the judgments passed by the Hon ble High Courts and Tribunal. Considering the doctrine .....

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