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ST - Sum charged by club to members for sale of items is not taxable if evidences like sale bills and P&L evidencing such sale are available: CESTAT

By TIOL News Service

MUMBAI, OCT 27, 2016: THIS is a Revenue appeal directed against the order passed by the Commissioner (Appeals) wherein the demand of Rs.5,44,098/- in respect of catering services was upheld but the demand of Rs.35,11,614/- in respect of sale of liquor was set aside.

The Adjudicating authority had confirmed the demand on the ground that the appellant had not produced any documentary evidence to prove that there is sale of liquor in terms of para 10.5 of Board Circular B-1/6/2005-TRU dated 27/07/2005 which reads -

 

 

10.5 Taxable services are defined as services provided to members by clubs or associations in relation to provision of services, facilities or advantages for a subscription or any other amount. Facilities or advantages are provided to members in return for a subscription or other consideration. The scope of the term any other amount is the amount paid by members, apart from membership fee or recurring subscription fee, such as amounts paid for provisions of services to the guests of a member, amount paid for get-togethers and functions charged over and above the subscription amount. This will also be liable to service tax. However, amount charged by club to its members for sale of items such as food or beverages would not be taxable provided the documents evidencing such sale are available.

As mentioned, Revenue is unhappy with the dropping of demand to the extent of Rs.35,11,614/- and, therefore, is before the CESTAT.

The AR while reiterating the grounds of appeal submitted that ample opportunities were given to the appellant for producing the documentary evidences to establish the sale of liquor but since the same was not forth coming the demand was rightly confirmed by the original authority and the same ought to have been maintained by the Commissioner(A).

None represented the respondent despite notice.

The CESTAT extracted the findings from the order of the Commissioner (Appeals) and concluded thus -

"…From the above findings of the ld. Commissioner (Appeals), I observe that for dropping demand the Commissioner (Appeals) has considered sufficient evidences such as sale bills, balance sheet, CA certificate and VAT statements submitted to the Sales Tax Department, therefore, I am of the view that Ld. Commissioner (Appeals) has applied his mind rightly in dropping demand after establishing that there is sale of liquor and no service tax can be demanded on such sale…."

Holding that there is no infirmity in the impugned order, the same was upheld and the Revenue appeal was dismissed.

(See 2016-TIOL-2790-CESTAT-MUM)


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