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2024 (5) TMI 200 - CESTAT AHMEDABADRefund of of Service Tax paid under club or association services - doctrine of mutuality applicable - incidence of duty passed on not - hit by mischief of unjust enrichment as provided under Section 11B of Central Excise Act, 1944 or not - HELD THAT:- It is found that even the aspects of taxability decided by the Hon’ble Supreme Court in STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] is on the principle that due to doctrine of mutuality no service exists between the club or association and its members. When the Hon’ble Supreme Court held that the club or association and its members are not two distinct identity and there is a mutuality of interest between both of them on that basis only it was held that since no service provider or service recipient exists service tax is not payable. On the same principle, if any service tax is paid, it has gone from one hand to other within the same entity it cannot be said that the incidence of the service tax has been passed on. It can be seen that the Learned Commissioner (Appeals) held that unjust enrichment is not applicable due to principle of mutuality, it is completely agreed with the finding of the commissioner (Appeals) in the present case. The impugned orders are legal and correct which do not require any interference - the impugned order is upheld - Revenue’s appeal is dismissed.
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