TMI Blog2018 (6) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... tion) - transaction of sale of data - Held that:- The appellant provide various kind of data pertaining to automobile industry after collecting the same from various sources. This data is available to members as well as non-member on payment of certain charges - it is a transaction of pure sale of data and thus no service tax can be charged on the same. Business Exhibition Service - demand of service tax - Held that:- From the record produced by the appellant it appears that service tax has fully been discharged by M/s CII (who has actually organized the auto-expos) in this case. Since the M/s CII have discharged their service tax liability, the same amount cannot be charged to service tax twice - however, there are some differences between the amount of revenue sharing certified by M/s CII and the amount which is shown as receipt from the such exhibition in balance sheets of the appellant for various financial years (which are also subject matter of the present show cause notices and order-in-originals) - Since, this is only a matter of fact which is to be verified by the field level officers, we are inclined to send the proceedings for denovo adjudication only on the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Advocate appearing for the appellant has pleaded that the Adjudicating Authority has not applied his mind and the submission made by them in their written submissions as well as during the personal hearing has not been taken into consideration. The learned Advocate has tried to bifurcate the period of demand under the category of Club and Association Service into two periods viz. for the period 16/01/2005 to 31/03/2008 and 01/04/2008 and thereafter. It has been argued that an amendment was made into the Finance Act, 1994 under which a new Section 96J has been inserted on 8th April 2011. It has been provided under new Section 96J that no service tax shall be levied or collected in respect of membership fee collected by a club or association formed for representing industry or commerce during the period on and from 16/06/2005 to 31/03/2008 (both days inclusive). It has been emphasized by the learned Advocate that the demand for the period covered by Section 96J need to be dropped as the appellant represent an industry as an Association and they are fully covered by the provisions of Section 96J of Finance Act, 1994. For the period beyond 31/03/2008 onwards it has been argued t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rket the Auto Expo to all its 44 members through brochures, emails, telephonic marketing and any other mode of marketing that may be necessary to sell exhibition space to the SIAM members ; (b) CII to collect all charges from SIAM members for the participation in the show along with service tax ; (c) It is agreed that CII can raise bills in its own name directly on SIAM members participating in the show and also otherwise to deal with them directly relating to show matters ; (d) As SIAM members would be deducting TDS on participation fee and would finally issue TDS Certificate in the name of CII, M/s CII would give due credit to SIAM of the TDS benefit availed as a result of receipt of TDS Certificate in its name from SIAM Members. 5. It can be seen from condition (b) of the MoU above that the M/s CII is required to collect all charges from the Society of Indian Automobile Manufacturers (SIAM) members for participation in the show cause exhibition alongwith the service tax. The CII has certified vide various certificates that service tax has been discharged by them on the gross amount collected from the Members for auto expo. 6. Further, it has also been argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded as income, sale or service. 21. By relying upon the bye-laws of the clubs, a ground is sought to be raised that since the clubs also take on lease or hire moveable or immoveable property for its different purposes, they are liable to pay service tax. We have gone through the bye-laws and also the relevant rules and regulations of the Clubs and do not find any provision that the properties and/or the facilities, those are being made available by the members to themselves could be extended to third parties for any consideration whatsoever. 22. The members of the clubs are allowed exclusively to participate in the services rendered by the clubs and no third party is allowed to participate in the same. Even, the facilities and amenities of the clubs are not extended to any third party who, of course, may come as a guest and/or invitee of the members. The above exclusiveness is given for a limited period and for a specific purpose and therefore, in any case, it cannot be termed as lease or hire . Thus, it is clear from the activities of the clubs, as stipulated in its bye-laws and the relevant rules and regulations that the mandap keeper , in this case, are the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter of application of taxing statute so as to avoid the challenge of discrimination in application and administration of tax matters. Such principle has been laid down in Maneklal Chunilal Sons v. Commissioner of Income Tax - (1953) 24 I.T.R. 375; Commissioner of Income Tax v. Chimanlal J. Dalal Co. - (1965) 57 I.T.R. 285, Commissioner of Income Tax v. Tata Sons Pvt. Ltd. - (1974) 97 I.T.R. 128 and J.D. Patel v. Union of India - 1975 G.L.R. 1083. We are, therefore, in respectful agreement with the view taken by the Calcutta High Court in the decision referred to in Dalhousie Institute and Saturday club cases (supra) . Following the above order, we are inclined to set aside the order-in-original demanding duty and penalty under the Club and Association following the judicial discipline. 10. So far as demand of service tax on sale of statistical data (statistical service subscription) is concerned we find that the appellant provide various kind of data pertaining to automobile industry after collecting the same from various sources. This data is available to members as well as non-member on payment of certain charges. We find that it is a transaction of pure sale of data ..... X X X X Extracts X X X X X X X X Extracts X X X X
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