By TIOL News Service

MUMBAI, JAN 21, 2019: SERVICE Tax demand of Rs.23,95,850/- was confirmed against the appellant along with interest and penaltieson the ground that taxable services, viz., 'Business auxiliary service', ‘Management, Maintenance or repair service' and 'Health and fitness service', were provided by the appellant.

The period involved is October 2010 to March 2011.

In appeal before the CESTAT, the appellant submitted that under the identical set of facts for the period July 2003 to September 2007, the orders dated 23.1.2012 and 26.4.2012 confirming the adjudged demands, were set aside by the Tribunal by an order dated 12.6.2017 and reported as 2017-TIOL-2275-CESTAT-MUM.

The CESTAT had held thus -

ST - Demands under BAS, Management, maintenance or repair service, Health and fitness service - Consideration received from group companies - Under FA, 1994, it is not the transfer of money that is taxable but the provision of a specific service described in section 65(105) - Even if the appellant has collected lump-sum amounts from the owners of the units, the service of providing 'management/maintenance or repair service' is procured by the appellant from organisations that possess the necessary proficiency - appellant is a recipient of the services provided by 'management, maintenance or repair' service providers, therefore, it does not appear to be logical for the appellant to be taxed as a provider of the service - To provide access to the clubhouses, the appellant had been charging some amounts and they have been paying tax as a provider of 'club or association service' ever since that was included as a taxable entry - No evidence has been placed on record by Revenue that the services so provided are not in the latter category but in the former - Impugned orders set aside and appeals allowed: CESTAT [para 4 to 7]

And, therefore, since the position of law remains the same, the said decision of the Tribunal is squarely applicable for deciding the present appeal in favour of the appellant.

The AR chose to reiterate the findings in the impugned order.

The Bench considered the submissions and noted that the Adjudicating authority in paragraph 12 has made a categorical finding that the show cause notice issued in this case is a daughter notice and the mother notice issued by the Department had already been adjudicated vide order dated 20.1.2012.

Observing that both the ‘daughter' and the ‘mother' notices have alleged that the services provided by the appellant are conforming to the definition of taxable services under the category of ‘business auxiliary service', ‘management, maintenance or repair service' and ‘health and fitness service' and since the appeal filed by the appellant against the adjudication order 20.1.2012 has already been set aside by the Tribunal vide order dated 12.6.2017 (supra), therefore, a different stand cannot be taken at this juncture for deciding the appeal differently, it was held.

In fine, the impugned order was set aside and the appeal was allowed.

(See 2019-TIOL-240-CESTAT-MUM)