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TMI Blog2023 (5) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the respondent is able to run and operate casino at the business premises of M/s. BAPL, wherein the infrastructure and ancillary facilities for playing the game of casino was provided by M/s BAPL. Hence, it is claimed by the department that this transaction is in the nature of services provided by unincorporated joint venture to its constituent members, and it is not on principal-to-principal basis, as such the service tax liability under Business Auxiliary Service (BAS) is applicable to this transaction. 2. It is also contended by Revenue that the adjudicating authority has grossly ignored the fact that service has been provided by the respondent 3. The brief facts of the case are that the appellant had issued show cause notice dated 17/04/2014, to the respondent M/s. Goa Golf Club Private Limited, Goa (GGCPL), on the premise that M/s GGCPL is operating and running the casino on behalf of the said joint venture and have thus provided 'Business Auxiliary Service' as per Section 65 (19) (vi) of the Finance Act, 1994 read with Section 65 (105) (zzb) of the Finance Act, 1994 to the business of the joint venture entity. Therefore, M/s GGCPL appear to be liable for payment of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating and running the casino on behalf of the said joint venture and have thus provided "Business Auxiliary Service" as per Section 65 (19) (vi) of the Finance Act, 1994 read with Section 65 (105) (zzb) of the Finance Act, 1994 to the business of the joint venture entity. Therefore, M/s GGCPL appear to be liable for payment of service tax under 'Business Auxiliary Service' on the amount of share of Gross Win received from the Joint Venture Entity. 4.1. Section 65 (19) (vi) of the Finance Act, 1994 - "Business Auxiliary Service" means any service in relation to,- (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or .....; (vi) provision of service on behalf of the client, or...... xxxx xxxx xxxx 4.2. Section 65 (105) (zzb) taxable service means any service provided or to be provided to a client by any person in relation to business auxiliary service; 4.3. Thus, it appears that the noticee are liable to pay service tax, on the consideration received from the joint venture towards 'provision of service on behalf of the client viz. the joint venture' in as much as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia) Ltd. 1997 (89) E.L.T 441 (S.C) (vi) Paper products Ltd vs. Commissioner 1999 (112) E.L.T 765 (S.C) (vii) Commissioner of Central Excise, Goa vs. Vainguinim valle Resort Order No. A/85428/2019 dt. 5.3.2019 of CESTAT, West Zonal Bench 7. Shri Nitin Ranjan, learned authorised representative appearing for the department reiterated the submissions made in the appeal of the Revenue, and submitted that the M/s GGCPL has provided certain service to the clients of M/s BAPL, in promoting the business M/s BAPL, for which they earned the consideration as per the joint venture agreement. The learned authorised representative, therefore stated that the service provided by M/s GGCPL is appropriately classifiable under business auxiliary service. 8. The submissions advanced by the learned authorised representative for the appellant and the learned counsel appearing for the respondent have been carefully considered. 9. In order to appreciate the contentions, it would be appropriate to refer the agreement that was entered into between the two parties to the joint venture agreement, and the legal provisions governing the scope of service tax as given under the definition clause to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing certain service. In conclusion, he had dropped the demand of service tax raised in respect of "Business Auxiliary Service". 12. This precise issue of retaining certain amount by a hospital towards the necessary infrastructure facilities provided by it to the doctors who render medical services, for which the patients are charged as fees, and the total fees paid are settled between the hospital and doctors at the ratio of 22:78 had come up for consideration earlier before two benches of the Tribunal in the case of Sir Ganga Ram Hospital and Ors. Vs. CCE, Delhi-I 2018 (11) G.S.T.L. 427 /Commissioner of Service Tax, New Delhi 2020 (11) TMI 536-CESTAT New Delhi. The first decision rendered on December 06, 2017 was considered in the subsequent decision rendered on September 02, 2020. The Tribunal, after consideration of the conditions prescribed in the agreement held that this arrangement was for joint benefit of both the parties with shared obligations, responsibilities and benefits and, therefore, no service was provided by the hospital to the doctors. 13. We also notice that on this same issue a show cause notice was issued to the second party i.e., M/s BAPL separately vide F. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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