9911796707
TMI Blog2024 (10) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in the treatment, storage and disposal of industrial waste as per CPCB (Central Pollution Control Board) criteria and authorized by Gujarat Pollution Control Board (GPCB) (for management and handling). The appellant has set up a management of hazardous waste system for treatment ad further disposal of effluent or solid waste generated by the industrial units. Industrial units are members of the appellant. The appellant is established for disposal of effluents and solid hazardous waste and they accept only those effluents and wastes as directed by GPCB and dispose them off scientifically after providing treatment. During the treatment of such hazardous waste, no different product is created. The treatment is depending upon the nature of waste and it can be stabilized , neutralized and incinerated. They are authorized to treat for waste generated in industrial units , who have been specifically permitted by GPCB to get their waste treated as disposed. The appellant is charging admission fee for membership fee along with treatment charges as a consideration from their members. The activities carried out by the appellant is clearly falling under the taxable service category of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embership fees as well as treatment charges of hazardous waste from the member industries. This issue is no more res-integra as the same has been decided in favour of the assessee in following judgments :- a) In the case of Green Environment Service s Co.Op Society Ltd (Supra) the Hon'ble High Court of Gujarat has given the following judgment :- "Petitioners have challenged the vires of Section 65(25a) and also 65(105)(zzze) of the Finance Act, 1994 as amended by Finance Act, 2005 to the extent that said provisions pertain to levy of Service Tax in respect of the services provided by the petitioner-society to its members. The petitioners have also challenged an order dated 9-10-2007 passed by the adjudicating authority confirming the Service Tax demand of Rs. 71,43,582/- with interest and penalty at the rate of 200% of the tax demanded. He also imposed a separate penalty of Rs. 200/- per day or 2% of the tax not paid, whichever is higher. 2. The petitioner No.1 is a society registered under the Gujarat Cooperative Societies Act and is engaged in the activity of maintaining a common effluent treatment plant at Vatva Industrial Estate, Ahmedabad. The petitioner No. 1 provides th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering any service to the members. As such, it cannot be said that M/s. GES is rendering any service to its members. 2. Clubs or associations are essentially for recreational or social purposes. This can be inferred from the clauses (i), (ii), (iii) & (iv) of Section 65(25a) of the Finance Act, 1994. 38. I do not find any merit in either of these submissions. The very existence of the service "club or association service" in the Finance Act, 1994 implies that a distinction is made between a club or association and its members. For legal purposes they are two separate entities. As far as their submission that clubs or associations as defined under the Finance Act, 1994 cover only recreational or social associations, 1 find no such restriction. 1, therefore, hold that the service provided by M/s. GES is actually a "club or association service" which is taxable from 16-6-2005. The Service Tax liability for the services rendered by M/s. Green Environment Services Co-operative Society Ltd. from 16-6-2005 to 31-3 2006 comes to Rs. 71,43,582/- (Rs. 70,03,512/- Service Tax plus Rs. 1,40,070/- Education Cess)." 4. Learned counsel, Shri Shelat pointed out that the provision of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the Revenue pointed out that by notification giving retrospective effect such services have been exempted from payment of Service Tax. In our opinion, this would be one of the additional ground for setting aside the impugned order of adjudication. 7. Accordingly, impugned order dated 9-10-2007 passed by the Commissioner of Service Tax is set aside. Rule made absolute. No costs." b) This Tribunal in the case of Vapi Waste and Effluent Management Co (Supra) has taken the same view in the following judgment :- "The appellant company has been incorporated in the year 1997, consequent upon the order of the Hon'ble High Court of Gujarat for the purpose of taking over the responsibility of operation of Common Effluent Treatment Plant from Gujarat Industrial Development Corporation (GIDC) for the purpose of treating the effluent discharged by the industries located in the GIDC area, Vapi. The industrial units located in the Vapi industrial area discharging hazardous effluents are compulsorily required to become a member of the appellant association for the purpose of getting their hazardous effluents treated in their plant as per the norms prescribed by GPCB (Gujarat Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on" means any person or body of persons providing services, facilities or advantages, for a subscription or any other amount, to its members, but does not include - (i) Any body established or constituted by or under any law for the time being in force; or (ii) Any person or body of persons engaged in the activity of trade unions, promotion of agriculture, horticulture or animal husbandry; or (iii) Any person or body of persons engaged in any activity having objectives 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; 6.2 Clause 105(zzze) of Section 65 of the Finance Act, 1994 as amended defines 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." 6. In the show-cause notice, a view was also taken that a company or association that are formed for providing services of common facilities on payment of the subscription are liable to pay service tax. At the time when the impugned order was passed, there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not change just because they are registered as a company. In any case, we find that the learned A.R. cannot take up this argument at this stage. Since the demand on appellant was confirmed on the ground that the appellant is an association of members and it was collecting subscription. In view of the clear cut stand taken by the Revenue and also in view of the submission about the statute made by the learned counsel, we hold that the appellant is an association for the purpose of liability of service tax and eligible for exemption. Since appellant is eligible for exemption on merits, the appeal and the impugned order confirming the demand of duty and imposition of penalty is set aside." c) The coordinate bench of this Tribunal at Ahmedabad bench in case of Nandesari Ind Association vs. C.C.Ex (Supra) following the above judgment passed the following order :- "The issue involved is that the appellant is an industry association set up for the activity of treatment and recycling of effluents and solid wastes. 2. The Revenue has demanded the Service Tax under the Club or Association Service referred under sub-clause (zzze) of clause (105) of Section 65. 3. Sh. Sailesh Vyas, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f effluents and solid wastes, with financial assistance from the Central Government or a State Government; (ii) the provisions of Section 11B of the Central Excise Act, 1944 (1 of 1944), shall be applicable in case of refunds under this section." 6. In view of the above section, the Club or Association Service set up for a project for treatment and recycling of effluents and solid wastes is exempted subject to condition that the same is set up with the financial assistance by the Central Government or a State Government. As per the sanction letter dated 9-9-2010 issued by the Industry Commissionerate, it is clear that the project was financially assisted by the State Government of Gujarat. 7. Accordingly the Service is clearly exempted under Section 145. The impugned order is set aside, the appeal is allowed." 4.2 In view of the above judgments it is settled that any charges collected by a company towards the treatment of hazardous waste of the industries who are the members of the company who operates effluent treatment is not liable to service tax. 4.3 As regard the period after the negative list regime i.e. 01.07.2012 to 31.03.2015, the government has issued a Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
