CCE Vs. ANUBHAGYA WELFARE SOCIETY

JUDGEMENT

(1.) THE Revenue challenges the order of the Commissioner (Appeals) made on 26.09.2006 by which the order -in -original confirming demand of Rs. 38,267/ - of Service Tax, imposing penalty of like amount under Section 76 of the Finance Act, 1994, imposing penalty of Rs. 40,000/ - under Section 78 of the said Act, and ordering recovery of interest of Rs. 38,267/ -, was set aside.

(2.) A show cause notice was issued on 15.12.2005 to the respondent, Anubhagya Welfare Society, for not paying Service Tax in respect of taxable service under the category of 'Cable Operators Services'. According to the Revenue, the assessee received from its members one time security deposit of Rs. 500/ -, which was later on adjusted and utilized as additional collection for providing taxable services over and above charging regular amount of Rs. 50/ - per member per month upto March, 2003, which was raised to Rs. 60/ - per member per month from April, 2003 to March, 2005. A total amount of Rs. 1,60,000/ - was adjusted as additional amount charged for providing Cable Operators Services.

(3.) THE Deputy Commissioner, on the basis of the material on record, came to a finding that, Cable Operators Services were provided to the members who subscribe the monthly amount for receiving the service. The gross amount charged for providing Cable Operators Services was not disclosed. The tax was, therefore, ordered to be recovered and penalties imposed. The Commissioner (Appeals) was, however, of the view that the activities of the Society were not for the purpose of making money or for any commercial consideration, and that it was a welfare society. Moreover, there was no mutuality as the Society did not provide any service to non -members. Reliance was placed on the decision of the Hon'ble High Court of Calcutta in Dalhousie Institute v. Assistant Commissioner, Service Tax reported in 2005 (180) ELT 18 (Cal), for holding that no Service Tax was leviable. The learned Single Judge of the Hon'ble Calcutta High Court held that, the facility of use of the premises by the club to its members cannot be termed to be a letting out. Moreover, the members were not clients of the club. In Saturday Club Ltd. v. Asstt. Commissioner, Service Tax Cell, Calcutta , the learned Single Judge of the Hon'ble Calcutta High Court held that, members and club both are same entities.