2024 (10) TMI 679

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....Association Service for the period of April 2014 to September 2014 and none of the challans shows the payment was made under protest. Further they do not mention about the protest under the service tax returns filed by them. The protest letter was admittedly submitted to the range superintendent regarding payment of tax under protest and not to the Division Office of the Service Tax department. The incident of service tax has been borne by the Members and therefore the service tax is collected, if refund claim is sanctioned would be share of profit to club in form of unjust enrichment. The decision of Hon'ble Gujarat High Court has been challenged to the Hon'ble Supreme Court which is pending for disposal. The learned Commissioner (Appeals)....

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....e dismissed. 5. We have carefully considered the submission made by both the sides and perused the records. We find that as regard the limitation and whether the duty was paid under protest or otherwise, there is no dispute that the appellant have submitted a letter of protest, merely because it was submitted to the Superintendent, it cannot be said that the procedure was not followed. The objective of payment under protest is that in any form the appellant should express their intention of making payment under protest which is clearly complied by their letter of protest filed before Superintendent. Therefore, as regard the payment of service tax under protest, we do not find any fault and therefore, the refund claim is not hit by limitati....

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.... by the adjudicating authority. The respondents had filed the claims in view of the decision of Hon'ble High Court of Gujarat in the case of Sports Club of Gujarat vs Union of India. The judgment of the Hon'ble High Court of Gujarat is based on the 'Principles of Mutuality'. I also have the same view that any transaction by the club with its member is not a transaction between two parties. The question of unjust enrichment will arise only when there is the existence of two or more distinctly separate parties. But when the respondents are dealing with their members, we find that they are not separate entities. The Hon'ble High Court proclaimed that; "The petitioner is giving service to its members but the club is formed....