TMI Blog2018 (9) TMI 1728X X X X Extracts X X X X X X X X Extracts X X X X ..... moment an establishment is running “Health club and fitness centre” under Section 65(52) of the Finance Act, 1994 service tax is applicable as there is no explanation of the word “club” under Section 65(52) and its inclusive definition including the appellant club and other similarly placed clubs and therefore the club is registered under the Service Tax Department charging and collecting from its members and therefore refund claim is not tenable - the argument of the learned counsel for the appellant that the decision of the Hon’ble High court is per incuriam is not correct because the High Court has given reasons for denial of the refund. Appeal dismissed - decided against appellant. - ST/6, 162, 584/2008-DB - Final Order No. 21458- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 to March 2007. Later the appellant filed refund claims on the ground that they are providing service to its own members; that they have wrongly paid service tax and they are of the opinion that they are not covered under the definition of club or association within the meaning of Section 65(25a) of Finance Act, 1994, which was rejected by the lower authority on the ground that there is no such exclusion clause or exemption under Clause 52 of Section 65 of the Finance Act, under the category of health and fitness service specified under Section 65(51) of the Act. It was also observed that the case is hit by the unjust enrichment clause inasmuch as incidence of tax has been passed on to the clients. Aggrieved by the Order-in-Original, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notices proposing to deny/reject the refund claims on the ground that the appellants had rendered service taxable under the category of health club and fitness centre . He further submitted that the issue whether the club is liable for payment of service tax on the amounts collected from its own members is well settled now by various High Courts by holding that there is no rendering of service between the club and its own members and the club is not liable for payment of service tax on the amounts collected from its members. In support of this submission, he relied upon the following decisions:- i. Ranchi Club Ltd. Vs. UOI [2012(26) STR 401 (Jhar.)] ii. Sports Club of Gujarat Ltd. Vs. UOI [2013(31) STR 645 (Guj.)] iii. Surat Ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of J.K. Synthetics Ltd. Vs. UOI [1981(8) ELT 328 (Del.)]. 5. On the other hand, the learned AR defended the impugned order and submitted that on the identical issue in the appellant s own case for the previous period, this Tribunal has rejected the refund claim of service tax paid under health, health club and fitness centre. Aggrieved by the order of the Tribunal, the appellant filed appeal before the Hon ble High Court and the Hon ble High Court of Karnataka dismissed the appeal of the appellant and confirmed the order of the Tribunal. He further submitted that the issue involved before the Tribunal and the High Court was the same as is involved in the present appeals. He further submitted that the decision of jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act, providing various services to its members. It is also registered with the Service Tax Department under the category of Health and Fitness Service . It is charging, collecting and paying the service Tax for the period from October 2005 to March 2006. But they have filed a refund claim on the ground that they are registered under the Karnataka Societies Registration Act and providing service to its own members. It is mutually consented between the members and the club. Therefore service tax is not applicable to the appellant club is examined by the Assessing Officer. While examining the said contention, the Assessing Officer has held that the service rendered by the club to its members come under the category of Health and fitness s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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