TaxTMI 
TaxTMI 
2022 (2) TMI 1009
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....cieties Act, 1959. The appellant is an apex body having 13 members who are milk unions at the district level; the appellant is a Members' Association, or Members society formed for the purposes of promotion of diary development; the appellants promote diary development activities in the state on the pattern of AMUL; they procure orders on advance payments and inform the members to supply milk in bulk; in addition to these activities, the appellants have a conference hall which is sometimes let-out to others and due service tax is paid on the same under Mandap Keeper Service. The appellants approached the department in November 2004 explaining their activity and seeking advice on the applicability of service tax, however, there was no writte....
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.... a new taxable service was specifically introduced from a specific date, inclusion of certain services in that entry presupposes that there was no earlier entry covering such services; it is an undisputed fact that the appellant is a society/association and has rendered services to its own members, therefore, the services between a club/association and its members can be brought under service tax only under the category of 'Club or Association Service' and not under any of the categories that the department attempts to do. He relies upon the following cases: (i) Indian National Shipowners Association vs. UOI: 2009 (14) STR 289 (Bom.) (ii) CCE vs. Kotak Mahindra Capital Co. Ltd.: 2017 (7) GSTL 401 (Bom.) (iii) CST ....
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....l suppression of facts or contravention of provisions of act with intent to evade payment of duty as the appellants themselves have approached the department with a request for clarification and all the facts were placed before the authorities way back in 2004 whereas the show-caused notice came to be issued in 2008. Therefore, suppression of fact cannot be invoked in view of the apex court judgment in the case of Continental Foundation Joint Venture: 2007 (216) ELT 177 (SC) and Chemphar Drugs and Liniments: 1989 (40) ELT 276 (SC). 4. Learned AR for the department reiterates the findings of Order-in-Original and Order-in-Appeal and relies upon the case of Kaira District Co.op. Milk Producers Union Ltd.: 2002 (11) TMI 97 (SC)/2002 (146) E....
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....ion or any other amount to its members would be within the tax net. However, what is of importance is that anybody "established or constituted" by or under any law for the time being in force, is not included. Shri Dhruv Agarwal laid great emphasis on the judgments in DALCO Engineering Private Limited v. Satish Prabhakar Padhye and Ors. Etc., (2010) 4 SCC 378 (in particular paragraphs 10, 14 and 32 thereof) and CIT, Kanpur and Anr. v. Canara Bank, (2018) 9 SCC 322 (in particular paragraphs 12 and 17 therein), to the effect that a company incorporated under the Companies Act cannot be said to be "established" by that Act. What is missed, however, is the fact that a Company incorporated under the Companies Act or a cooperative society registe....
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....strument of partnership, and that it could reasonably and in conformity with commercial practice, be held to apply to a firm which may have come into existence earlier by an oral agreement, but the terms and conditions of the partnership have subsequently been reduced to the form of a document. If we construe the word "constitute" in the larger sense, as indicated above, the difficulty in which the Learned Chief Justice of the Calcutta High Court found himself, would be obviated inasmuch as the section would take in cases both of firms coming into existence by virtue of written documents as also those which may have initially come into existence by oral agreements, but which had subsequently been constituted under written deeds." 7....
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.... registered cooperative society and any such activity rendered by them to their member societies is a service to themselves and there is no service provider - service receiver relationship between the members of the same organisation. The issue before us is squarely covered in favour of the appellants in view of ratios and case cited and discussed above. Learned AR places reliance on Kaira District (supra). We find however that the issue discussed therein was whether the apex body and the cooperative societies are related persons within the meaning of Section 4(4)(c) of Central Excise Act, 1944. Therefore, it is very clear that the ratio is clearly distinguishable on facts itself. Therefore, we hold that the demand of service tax vide impug....