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TMI Blog2018 (7) TMI 2359X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 to 31/12/2013 to the extent of Rs. 66,20,558/- paid by them during the said period under the category of "Club or Associations Services". The said refund claim was filed on the ground that as per the law declared by the Hon'ble Gujarat High Court in the case of M/s Karnavati Club Ltd. vs. Commissioner of Service Tax and dismissal of the Revenue's appeal by the Hon'ble Supreme Court on 26/04/2010, there was no requirement to pay 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to payment of service tax on their services. Inasmuch as the appellant has not opted for provisional assessment nor mentioned phrase "Under Protest" on their challans, rather they continued to pay the service tax on their services as per their earlier practice, their letter dated 13/07/2010 stood disposed of at that point itself. Accordingly, he has held that the service tax was not deposited "under protest". 6. We have 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 provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H) has held that if an assessee in their letters to Jurisdictional Authorities contend that it was not liable to pay the taxes and pays the tax on pressure from the Department, the payment of tax is required to be considered as not voluntarily paid. The Hon'ble High Court also observed that it is not necessary that the duty payment should be accompanied by words "Under Protest" and if the conduct of the assessee indicates that 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 „un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultravirus inasmuch as the clubs and its members cannot be held to be two different individuals and by applying the principle of mutuality, club members are not different from club, even if club was incorporated under Companies Act, 1956. In such a scenario, it is the contention of the appellant that club as wells as members being one and the same, principle of „unjust enrichment' would not apply. 10. The Hon'ble Gujarat high court in the 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is missing. However, so far as services by the club to other than members, learned counsel of the petitioner submitted that they are paying the tax." 11. As seen from the above, it stand observed by the Hon'ble High Court that the basic feature required in services is presence of two persons or two legal entities i.e. service provider and service receiver and if the club provides any services to its members, in any form, then it is not a service 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 enrichmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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