PER : D.M. MISRA

This is an appeal filed against Order-in-Original No.07/ST/2011 dated 11.10.2011 passed by the Commissioner of Central Excise, Customs & Service Tax, Mysore.

2. Briefly stated the facts of the case are that on the basis of information, the Preventive Unit of the Department initiated an investigation against the appellant since the appellant provided taxable services under the category of ‘Club or Association Service’ but failed to discharge service tax amounting to Rs.52,85,307/- during the period 16.06.2005 to 31.03.2009 along with interest and penalty. On adjudication, the learned Commissioner has reduced the demand to Rs.50,98,330/- with interest and equivalent penalty under Section 78 and further penalties under different provisions of Finance Act, 1994.

Hence, the present appeal.

3.1. At the outset, the learned Chartered Accountant for the appellant has submitted that the appellant is a charitable trust registered on 03.11.2000 with the objective of promoting golf and other games and tourism. It is registered as charitable trust with the Income Tax Department. Further, the Karnataka State Government has recognised the appellant as a tourism promoting unit and granted exemption from levy of luxury tax. He has submitted that the adjudicating authority, held that the services rendered by the appellant are classifiable under the category of ‘Club or Association’ service and discussed in detail the receipts on various counts and confirmed the demand of service tax along with interest and penalties. He has submitted that the appellant being a charitable trust providing services to its members; therefore, the amount received from the members as annual subscription fees and other charges cannot be considered as a service in view of the judgment of the Hon’ble Supreme Court in the case of State of West Bengal Vs. Calcutta Club Limited [AIR 2019 SUPREME COURT 5310].

3.2. He has further submitted that other receipts like subsidy granted by the Government of India and additional general fund received as donations for which no service has been rendered but it is used for the construction of club house and other buildings, which cannot fall under the scope of ‘Club or Association Service’. Further, he has submitted that the guest house provided on rent to the members for residential accommodation cannot be leviable to service tax as service tax on room rent is levied only from 01.05.2011 by insertion of sub- clause (zzzzw) to Section 65(105); therefore, it is not liable to tax prior to that date. In support, they have referred to the judgment in the following cases:

i. Glaxo Smithkline Pharmaceuticals Ltd. Vs. CCE [2005(188)ELT 171 (Tri. Bom.)]

ii. Board of Control for Cricket in India Vs. CST [2007(7) STR384 (Tri. Mum.)]

iii. KK Appachan Vs. CCE [2007(7) STR 230 (Tri. Bang.)]

iv. CCE Vs. Sathguru Managament Consultants P. Ltd.[2007(7) STR 654 (Tri. Bang.)]

3.3. On demand of sponsorship services, the learned consultant has submitted that the sponsorship amounts received from various bodies to conduct golf tournaments. Under sub-clause (zzzn) of Section 65(105), the sponsorship relating to sports is excluded from levy of service tax and hence, the same cannot be subjected to service tax and only from 01.07.2010, sponsorship relating to sports activity is leviable under the definition of Sponsorship Service.

3.4. On the deposits received from Long Term Temporary Guest (LTTG) members, he has submitted that it is a liability for the club and it cannot be said to be provided any service in relation to accepting the said deposits. The deposits have been shown in the liability side of the balance sheet. These category of members are allowed to use the facilities of club for which, separate charges are levied. During this tenure, the members are required to learn the game of gold and thereafter eligible for permanent membership, which are conferred by the Executive Committee; if they are not eligible, the amount deposited i