TMI Blog2023 (12) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety and its members that means both are one. Accordingly, there is no service provision by one person to another person. Therefore even as per the definition of service provided under section 65B(44) with effect from 01.07.2012, the activity between the appellant and it's members does not fall under the definition of service. From the above decision of this Tribunal, it can be seen that the facts and the legal issue involved in the present case is same as in the above case. Therefore, the ratio of the above decision is squarely applicable in the present case - the impugned order set aside - appeal allowed. - HON BLE MR. RAMESH NAIR , MEMBER ( JUDICIAL ) And HON BLE MR. RAJU, MEMBER ( TECHNICAL ) Shri Rahul Patel , Chartered Accountant for the Appellants Shri Rajesh Nathan , Assistant Commissioner ( AR ) for the Respondent ORDER RAMESH NAIR : The brief facts of the case are that appellant is the member society incorporated under the Gujarat Corporative Societies Act, 1961 for the purpose of management and maintenance of Sumel Business Park-2 of commercial scheme comprising various commercial buildings owned by the member of the appellant soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept the services prescribed under the negative list are chargeable to Service Tax. 4.1 We find that the allegation made in the show cause notice is on the completely different provision and the grounds than the statutory provision applied while confirming the demand of Service Tax in the adjudication order. Therefore, the adjudication order has travelled absolutely beyond the scope of show cause notice. The demand of Service Tax is liable to be set aside on this ground itself that the adjudication order cannot travel beyond the show cause notice. This issue has been considered time and again in various judgments. Some of the judgments which are relied upon by the appellant are reproduce below : a) In the case of Commissioner of Central Excise Vs. Gas Authority of India Ltd (Supra) the Hon ble Supreme Court of India has passed the following order: 7. As repeatedly held by this Court, show cause notice is the foundation of the Demand under Central Excise Act and if the show cause notice in the present case itself proceeds on the basis that the product in question is a by-product and not a final product, then, in that event, we need not answer the larger question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties and has perused the impugned orders passed by the Tribunal as well as by the Commissioner as well as the decisions cited by the learned counsel for the respondent. 9. On a conjoint reading of the show cause notice issued to the assessee and the questions proposed in this appeal, it is evident that the issues raised in the questions proposed do not find place in the show cause notice. From the averments made in the memorandum of appeal and the grounds raised therein as well as on a perusal of the impugned order passed by the Tribunal, it appears that the appellant does not dispute the validity of the order of the Tribunal on the grounds decided by the Commissioner, but on grounds, which were not subject matter of the show cause notice. In the show cause notice, the assessee was not called upon to state as to whether the services of Consulting Engineers and Banking and other Financial Services are input services of the respondent or as to whether the capital goods were used for providing output services provided by the respondent viz. Port Services , etc. Evidently therefore, in the present appeal, the appellant seeks to challenge the impugned order passed by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in any activity having objection which are in the nature of public service and are of a charitable religious or political nature; or (iv) Any person or body of persons associated with press or media: (section 65(25a) of the finance Act,1994) Taxable Service means any service provided or to be provided to its members, by any club or association in relation to provision of services, facilities or advantages for a subscription or any other amount. (Section 65 (105) (zzze) of the Finance Act, 1994) From the above definition itself, it is unambiguous that if any body is established or constituted by or under any law for the time being in force is clearly excluded from meaning of club or association. 4.3 In the present case, the appellant s society is incorporated under the Gujarat corporative Societies act, 1961 therefore it clearly falls under the four corners of the clause (i) of definition of club or association provided under sub clause (zzze) of clause (105) of section 65 of finance Act 1994. Therefore the appellant s activity does not fit into the club or association services. Even if considers that whether the appellant is liable to pay servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that since there is a doctrine of mutuality between the club or association and its members, no provision of service exists, particularly in a case where a body/club/ association is incorporated. 4.5 In the present case, as discussed above the appellant being admittedly an incorporated society under the Gujarat corporative Society Act, 1961 the ruling of the Apex court in the case of State of West Bengal Vs. Culcutta club Ltd. clearly applies, accordingly the Service Tax demand does not sustain. The Hon ble Supreme Court particularly for the period post 01.07.2012 gave a specific finding, the same are reproduced below: 81. When the scheme of Service Tax changed so as to introduce a negative list for the first time post-2012, services were now taxable if they were carried out by one person for another person for consideration. Person is very widely defined by Section 65B(37) as including individuals as well as all associations of persons or bodies of individuals, whether incorporated or not. Explanation 3 to Section 65B(44), instead of using the expression person or the expression an association of persons or bodies of individuals, whether incorporated or not , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of CCE Vs. Rajasthan Co-Operative Dairy Federation Ltd (Supra) wherein following their Lordships earlier judgment in the case of the State of West Bengal Vs. Culcutta club Ltd. (supra). The revenue s appeal was dismissed. This further reinforce that appellant being identically placed Co-Operative body of the appellant in the case of CCE Vs. Rajasthan Co-Operative Dairy Federation Ltd (Supra) the judgment of Hon ble Apex Court in the case of State of West Bengal Vs. Culcutta club Ltd. directly applies in the facts of the present case. 4.6 Without prejudice to the above, we find that the appellant have raised one of the issue that in case of maintenance deposit, the same is not liable to Service Tax as it is not on account of consideration towards the service but the same is refundable deposit. In this regard Learned Counsel has submitted ledger, wherein such maintenance deposit was accounted for. From the perusal of such account we find that the maintenance deposit was received as a refundable deposit and the same was shown as refundable in the ledger. Therefore, such amount cannot be considered as a consideration towards any service. Hence, the same is not chargeable to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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