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TMI Blog2022 (12) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2016, one for Rs.7,68,950/- for the period 2014-15 and another for Rs.9,22,795/- for the period 2015-16 on the ground that they have paid service tax under protest as they are Co-operative Society not engaged in any activity of profit and as per the principle of mutuality, services provided by them to their members would not be liable to Service tax under the Club or Association Service. Since the department was of the view that the grounds of refund claims are not sustainable and liable for rejection therefore a show cause notice dated 4.1.2017 was issued to the Appellant to clarify as to why the refund claim should not be rejected on merits as well as on the ground of limitation in terms of Section 11B of the Central Excise Act, 1944 as applicable to service tax vide Section 83 of the Finance Act, 1994. The Adjudicating Authority vide Order-in-Original dated 28.2.2017 rejected the refund claims on the ground of limitation u/s. 11B ibid as made applicable to Service Tax matters and also on merits by applying the provisions of Section 66B & 66D of Finance Act, 1994. On Appeal filed by the Appellant the learned Commissioner (Appeals) vide order dated 24.7.2018 rejected the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st therefore the period of limitation as prescribed u/s. 11B ibid would not apply to the facts of the case and otherwise also neither the adjudicating order nor the impugned order raised any issue regarding the time bar claim and since the revenue has not challenged the impugned order therefore they cannot be permitted to argue on the issue of limitation. Per contra learned Authorised Representative appearing on behalf of Revenue drew my attention towards paragraph 14 of the Adjudicating order which specifically dealt with the limitation issue although he failed to point out any finding on limitation from the impugned order. According to learned Authorised Representative the appeal is not sustainable on the ground of limitation as rightly held by the Adjudicating Authority and upheld by the learned Commissioner (Appeals). He further submits that non-compliance to the limitation provisions u/s. 11B ibid resulted in rejection of the refund claim and accordingly the present Appeal is liable to be rejected. 5. I have heard learned counsel for the appellant and learned Authorised Representative for the Revenue and perused the case records including the synopsis/written submissions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituted and existed for the exclusive purpose of catering/meeting to the requirements of its members, as per the laid down policy in the bye law, it cannot be said that there is involvement of two persons, one to be termed as the service provider and the other as the service receiver. Thus, the incorporated association and its member being one and the same, the activities undertaken or the services provided by the former will not be considered as a service, exigible to service tax under the principle of mutuality. 8. Considering various judgments delivered by Hon'ble Supreme Court and the Hon'ble High Courts on the issue of principle of mutuality vis-à-vis leviability of tax on the club or association service, this Tribunal in the case of Federation of Indian Chambers of Commerce & Industry (supra) has held that on application of the principle of mutuality, services provided by clubs/associations to their respective members would not fall within the ambit of the taxable "club or association" service. Further, in the case of Matunga Gymkhana (supra), this Tribunal has also taken the similar view. Though the said decisions were rendered under the un-amended definition of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective possession. Further, the fact is also not under dispute that the appellant do not provide any facilities or advantages for subscription or any other amount paid. Thus, under such circumstances, the appellant cannot be termed as an unincorporated association or a body of persons, for the purpose of consideration as a 'distinct person'. Accordingly, the explanation furnished under clause 3(a) in Section 65B of the Act will not designate the appellant as an entity, separate from its members. Furthermore, the purpose for which the appellant's society was incorporated, clearly demonstrate that it is not at all providing any service to its members and the share of contribution is to meet various purposes as stated above. Therefore, I am of the considered view that the case of the appellant is not confirming to the requirement of 'service', as per the definition contained in Section 65B(44) of the Act. 11. In view of the foregoing discussion and analysis, it is concluded that the activities undertaken by the appellant should not fall within the scope and ambit of taxable service, for payment of service tax. Therefore, service tax amount paid by the appellant should be eligible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) and Commissioner of Central Excise, Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the facts of the present case. 6. Both decisions have held the limitation prescribed under Section 11B of the said Act to be not applicable to refund claims for service tax paid under a mistake of law. The decision of the Supreme Court in the case of Collector of C.E., Chandigarh v. Doaba Co-Operative Sugar Mills (supra) relied upon by the Appellate Tribunal has in applying Section 11B, limitation made an exception in case of refund claims where the payment of duty was under a mistake of law. We are of the view that the impugned order is erroneous in that it applies the limitation prescribed under Section 11B of the Act to the present case were admittedly appellant had paid a Service Tax on Commercial or Industrial Construction Service even though such service is not leviable to service tax. We are of the view that the decisions relied upon by the Appellate Tribunal do not support the case of the respondent in rejecting the refund claim on the ground that it was barred by limitation. We are, therefore, of the view that the impugned order is unsustainable." 8. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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