TMI Blog2017 (7) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... provided to the club itself or to the member themselves - For invoking the principle of 'unjust enrichment’, the presence of two different parties, distinct from each other is required and it has to be held that the tax collected by the one, who is claiming the refund of the same has already been collected by him from the other party and the refund of the same cannot be allowed so as to make first party as unduly enriched - When services stands provided to himself only, and there is no second party, it cannot be said that the club would become unduly enriched by collecting the service tax from its members as well as by claiming the same as refund inasmuch as club and members have been held to be the same by various High Courts. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Service Tax in respect of said services being provided by them to their own members of the club. 3. Revenue initiated proceedings against the appellant by way of show cause notice dated 13/06/2014 proposing to deny the refund claim on the ground of limitation as also on account of unjust enrichment . The notice culminated into an order passed by the Original Adjudicating Authority rejecting refund claim which stands upheld by Commissioner (Appeals). 4. The said order of Commissioner (Appeals) is impugned before us. 5. As regards the limitation, learned advocate appearing for the appellant has drawn our attention to the letter dated 13/07/2010 addressed by the appellant to their Jurisdictional Assistant Commissioner of Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gone through the said letter dated 13/07/2010 addressed by the appellant to the Assistant Commissioner of Service Tax, Agra. It stands stated in the said letter that the appellant is a Non-profit Making Company and every member is a shareholders and the club is open to members only. The services are not being provided to non members. They referred to the Tribunal decision in the case of Dehradun Club Ltd. vs. Commissioner of Central Excise, Meerut, Final Order No.545/2007-SM[BR] dated 21/03/2007, vide which it was held that inasmuch as services are being provided to the members, the service tax is not attracted. They also referred to Hon ble Calcutta High Court decision in the case of Dalhousie Institute vs. Assistant Commissioner 2006 (0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat payment was not voluntary but were due to compulsion it has to be treated as having been made under protest . Similarly the Hon ble Allahabad High Court in the case of Kisan Cooperative Sugar Factory Ltd. vs. Commissioner of Central Excise 2018 (8) G.S.T.L. 365 (All.) has observed that deposit of tax under protest the limitation of Section 11B would not be applicable. In fact the Tribunal in the case of Monnet International Ltd. vs. Commissioner of Central Excise, New Delhi 2017 (3) G.S.T.L. 380 (Tri.-Del.) has allowed the refund of the deposited amount for a period of three years by observing that such duty was not required to be paid and retention of the amount, which was in the nature of deposit, by the Revenue is not permissible. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Sports Club of Gujarat Ltd. vs. Union of India - 2013 (31) S.T.R. 645 (Guj.), while declaring the levy as ultravirus and beyond the competence of parliament has referred to the Full Bench judgment of the Hon ble Patna High Court in the case of Commissioner of Income Tax vs. Ranchi Club Ltd. reported as 1992 (1) PLJR 252 (Pat.) as also Hon ble Jharkhand High Court decision in the case of Ranchi Club Ltd. vs. Chief Commissioner 2012 (26) S.T.R. 401 (Jhar.). As Para - 18 of the said decision is relevant for the purpose of deciding the issue of unjust enrichment , we reproduce the same for right reference.:- 18. However, learned counsel for the petitioner submits that sale and service are different. It is true that sale and servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by one to another. This leads us to hold that the club, while providing services to its members, have not provided the same to a second person and such services have been held to have been provided to the club itself or to the member themselves. For invoking the principle of unjust enrichment , the presence of two different parties, distinct from each other is required and it has to be held that the tax collected by the one, who is claiming the refund of the same has already been collected by him from the other party and the refund of the same cannot be allowed so as to make first party as unduly enriched. When services stands provided to himself only, and there is no second party, as observed by the Hon ble High Court, it cannot be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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