2018 (9) TMI 1728

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....eals are being disposed of by this common order. The details of appeals are given hear in below:- Appeal No. Period involved Refund involved ST/6/2008 04/2006 to 09/2006 Rs.9,17,886/- ST/162/2008 10/2006 to 03/2007 Rs.10,21,385/- ST/584/2008 04/2007 to 09/2007 Rs.11,48,121/- For the convenience, facts of appeal No.ST/162/2008 are taken. 2. Briefly the facts of the present case are that the appellant is a club registered under the Karnataka Societies Registration Act and providing various services to its members. They were registered with Service Tax department under the category of health and fitness service, and charged, collected and paid service tax accordingly during the period from October 2006 to March 2007. Later the ap....

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.... the present appeals. 3. Heard both sides and perused records. 4.1. Learned counsel for the appellant submitted that the impugned orders are not sustainable in law as the same has been passed without properly considering the facts and the law. He further submitted that the impugned orders are contrary to the binding judicial precedents on the same issue. He further submitted that the service tax was paid wrongly under mistake and the appellants have filed periodical refund claims under Section 11B of the Central Excise Act, 1944 seeking refund of the amounts so paid under mistake. The refund claims were filed within time limit and there is no dispute on this aspect. The Revenue issues periodical showcause notices proposing to deny/reject ....

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....r club is liable for payment of service tax on the amounts collected from its members at the first place. He further submitted that the issue decided by the Tribunal and the Hon'ble High Court was whether the service of health club and fitness centre falls in the definition in Section 65(52) of the Finance Act, 1994 and whether service tax is attracted to it or not. It is his further submission that it is well settled law that the principle of res judicata is not applicable in the taxing statutes and as a general principle of law the plea of estoppel is inapplicable in tax matters irrespective of whether the party is the assessee or the Revenue. In support of this submission, he relied upon the decision in the case of J.K. Synthetics Ltd. ....

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....y have collected service tax from its own members and paid the same to the Government under the category of health club and fitness center. Further, we find that this particular service was in dispute for the earlier period and this Tribunal as well as Hon'ble High court of Karnataka have rejected the refund claim of the appellant. Further we find that the Hon'ble High Court has distinguished some of the decisions relied upon by the appellant in the present case. It could be pertinent to reproduce the finding of the Hon'ble High Court, which is reproduced here in below:- It is an undisputed fact that the appellant club is registered under the provisions of Karnataka Societies Registration Act, providing various services to its members. It....