2018 (12) TMI 1777

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....to 31.01.2007 confirmed by the Ld. Assistant Commissioner vide Order-in-Original dated 30.06.2008 under the category of 'Health Club and Fitness Centre services', which has been further upheld by the Ld. Commissioner (Appeals), Bhubaneswar, vide Order-in-Appeal dated 30.03.2009. The assessee is in appeal before us against the aforesaid appellate order. 2. Briefly stated, the facts of the case are that the appellant is engaged in the business of development of software as a 100% EOU operating under the STPI scheme. The appellant has settled a Trust, namely, 'Infosys Technologies Limited Employees Welfare Trust' (hereinafter referred to as the 'Trust'), through the Trust Deed dated 15.09.1994 for the purpose of welfare of its employees. Th....

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....ceedings before the Commissioner (Appeals), the appellant also pointed to the subsequent Order-in-Original dated 28.11.2008 (para nos. 3.2 to 3.7 appearing in page nos.47 to 49 of Appeal Paper Book) issued to the appellant for the subsequent period, wherein after noting the fact that since the Trust has already discharged the liability of service tax under Club or Association Services, a parallel demand on appellant company could not be made. The Ld. Assistant Commissioner while dropping the demand against the appellant also accepted that it would be proper to classify the services under 'Club or Association Services' and not under the category 'Health Club & Fitness Centre services'. In the impugned Order-in-Appeal, the Ld. Commissioner (A....

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....After hearing both sides and on perusal of the appeal records, we find that the Trust has been constituted for the welfare of the employees in 1994 much before the period of dispute impugned herein. Both Trust and the appellant company cannot be said to be one and the same entity, inasmuch as both are separately assessed to Income Tax and both have been granted separate service tax registrations which is a fact on record. Both the authorities below have taken note of the fact that subject service (for gym, health centre, etc) has actually been rendered by the Trust and it is only the premises where gym is located, belongs to the company, which in our view should not be the mere criterion for ascertaining the service provider. In fact, the e....