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TMI Blog2019 (7) TMI 1787X X X X Extracts X X X X X X X X Extracts X X X X ..... 65(105)(zzze) of the Finance Act, 1994. A SCN was issued to the Appellant in 2008 alleging non-payment of service tax on corporate membership fees received by the Appellant prior to 16/06/2005 but for which services are to be provided after 16/06/2005 also proportionately based on the Explanation 3 inserted in the Section 67 of the Finance Act, 1994 w.e.f. 13/05/2005 for the period 2005-06 (up to Dec 2005) amounting to Rs. 41,15,076/- including cess and also for non payment of service tax on Junior membership and NRI membership billed in July 2005 and Oct 2005 respectively amounting to Rs. 38,969/-. Thus the total demand being Rs. 41,54,045/-. The Appellant had submitted its reply before the Ld. Adjudicating Authority with proof of payments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived for Junior membership and NRI membership, the Ld. CA submitted that the said amount of Rs. 39,002/- has also been deposited vide challan dated 05/05/2006 as is evident from the chart of payment in page 5 of the SCN itself. He further submitted that since the entire demand was paid under protest before the issuance of SCN, the question of penalty does not arise and the levy itself on the corporate membership fees received prior to 16/06/2005 cannot sustain. In this regard he relied on the following decisions :- a. CARRIER POINT Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR 2018 (10) G.S.T.L. 213 (Raj.) b. M/s ENCHANTED WOODS CLUB LTD Vs COMMISSIONER OF CENTRAL EXCISE, LUDHIANA2014-TIOL-849-CESTAT-DEL c. BANGALORE CLUB Vs COMMIS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case for the appellant inasmuch as the legislation has now used the language after 2005 which clearly states as under; "Taxable service means any service provided or to be provided to any person by a Commercial training or coaching classes in relation to the Coaching. 31. In that view of the mater, it is very clear that prior thereto, there is authority interpretation of the provision as services which are referred to be provided in future was not covered. Even otherwise in view of the law Concluded Contract cannot be revived in view of subsequent development which will lead to a very odd situation with the assessee and he has to suffer in his business and has to face the breach of contract. 32. In that view of the matter when we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable by the Appellant for delayed payment of service tax. 8. Further, as regards imposition of penalty of Rs. 83,00,000/- on the Appellant, we find that the levy was itself introduced w.e.f. 16/06/2005 and the major demand itself not being sustainable, the question of invoking suppression cannot be upheld in the current case. We rely on the decision of the Tribunal in NOBLE INSTITUTE (EDUCATION) PVT. LTD. Versus COMMR. OF S.T., AHMEDABAD 2008 (10) S.T.R. 374 (Tri. - Ahmd.) wherein in a similar issue as to taxability of amounts received prior to levy of tax, it was held that - "3.....................In any case, no question was ever raised by the appellant's jurisdictional Central Excise authorities questioning the disclosure of the fees ..... X X X X Extracts X X X X X X X X Extracts X X X X
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