MALABAR HILL CITIZENS FORUM Vs. COMMISSIONER OF C. EX., MUMBAI
LAWS(CE)-2015-9-4
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on September 07,2015

Malabar Hill Citizens Forum Appellant
VERSUS
Commissioner Of C. Ex., Mumbai Respondents


Referred Judgements :-

M N Dastur and Co LTD VS. Union of India [REFERRED TO]


JUDGEMENT

M.V.RAVINDRAN, MEMBER (J) - (1.)THIS appeal is directed against Order -in -Appeal No. SB(73)73/STC/2010, dated 16 -6 -2010. Relevant facts that arise for consideration are on scrutiny of ST -3 returns filed by the appellant for half yearly period ending March, 2006, it was noticed that an amount of Rs. 38,67,671/ - was shown as bill for exempted services but no tax was indicated under which exemption was availed. Revenue authorities sought details regarding such services. Appellant did not provide any information or data or produce documents hence show cause notice dated 16 -4 -2007 was issued demanding service tax of Rs. 3,94,502/ - under the provisions of Section 68 of the Finance Act, 1994 and also sought to impose interest and penalties. Subsequently, further reminders were issued calling for the information for the past period, i.e., 16 -8 -2002 to 30 -9 -2005. Copies of annual accounts for the years ending March, 2003 to the year ending March, 2006 was handed over by the appellant belatedly and from the scrutiny of documents it was noticed that appellant had not discharged the service tax liability on the amounts received by them for the entire period for the services of aerobics and yoga. As the said amount was not indicated in the return, another show cause notice dated 19 -10 -2007 was issued by invoking extended period for demand of service tax, interest thereon and for imposition of penalties for the period 16 -8 -2002 to 30 -9 -2005. The adjudicating authority after considering the submissions made by the appellant before him, adjudicated both the show cause notices and confirmed the demand of service tax with interest and imposed penalties on the appellant. Aggrieved by such an order, an appeal was preferred before the first appellate authority. The first appellate authority after considering the submissions made by the appellant confirmed the demands, interest thereof and also penalty.
(2.)Learned Chartered Accountant appearing on behalf of the appellant would take us through the allegations made in both the show cause notice and the replies submitted by them. It is his submission that as regards the service tax liability on an amount received by them for providing aerobics and yoga classes he would submit that these services are not for physical well -being of any individual and accordingly could not fall under the category of "Health and Fitness Centre". He would submit that the first show cause notice dated 16 -4 -2007 was issued for the demand of service tax within the limitation period while the 2nd show cause notice was issued on 19 -10 -2007 invoking extended period, which is incorrect. He would submit that Revenue authorities were aware of the issue of show cause notice dated 16 -4 -2007. He would submit that appellant is a charitable institution and hence will not fall under the category of definition of "Health and Fitness Centre". He would draw our attention to the form ST 3, prior and post 1 -3 -2006 and submit that for the prior period there is no requirement of declaring the exempted services rendered by the appellant and the appellant had bona fide impression that the amounts collected by them for aerobics and yoga are not taxable. He would rely upon the judgments in the case of M.N. Dastur Co. Ltd. v. UOI - : 2006 (4) S.T.R. 3 (Cal.) and Nizam Sugar Factory - : 2006 (197) E.L.T. 465 (S.C.): 2008 (9) S.T.R. 314 (S.C.).
(3.)LEARNED DR on the other hand would submit that the claim of the appellant that aerobics and yoga will not be covered under the Health and Fitness Service is incorrect. He would submit this Bench in the case of Osha International Foundation Neo Sannyas Foundation -, 2015 -TIOL -1081 -CESTAT -MUM :, 2015 (40) S.T.R. 530 (Tri. - Mum) has held that meditation course and yoga will fall under the category of "Health and Fitness Services". He produced a copy of the said judgment. He would submit that the appellant herein did not produce documents which were asked by the department for arriving at correct service tax liability, hence the first show cause notice issued in order to cover the period within limitation and the 2nd show cause notice was issued within two months of the receipt of the documents and details from the appellant. Hence invocation of the extended period was correct.
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