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TMI Blog2009 (6) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of law framed and prayed to set aside the impugned order by allowing the appeal answering the questions of law in favour of the appellant. 3. The ground of attack of the impugned order is that the same is contrary to the following decisions of the Apex Court and therefore it is vitiated in law. (a) Collector v. Sunrise Structural & Engg. (P) Ltd., 2003 (154) E.L.T. A241 (S.C.) (b) SACI Allied Products Ltd. v. CCE, 2005 (183) E.L.T. 225 (S.C.). (c) CCE v. Gammon Par Chems Ltd., 2003 (152) E.L.T. 28 (S.C.). (d) Commissioner v. Goodluck Industries, 2000 (120) E.L.T. A66 (S.C.). Hence it is contended that question No. 1 would arise for consideration. 4. The second ground of attack of the impugned order, by placing strong reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther (1965) 16 STC 38, wherein this Court while examining Section 2(I)(k) and Explanation 1 to Section 2(I)(t) of erstwhile Mysore Sales Tax Act with reference to Article 14 of the Constitution of India, this Court has held the aforesaid provision of Section 2(I)(k) and 2(I)(t) to the extent they attract the supplies made by dubs, registered as well as unregistered to their members to tax under the Act are ultra vires of the powers of the State Legislature and consequently void and inoperative. With reference to the said decision learned counsel placed strong reliance on the decision of the Supreme Court in 2007 (7) S.T.R. 25 (S.C.) in the case of All India Federation of Tax Practitioners v. Union of India where in the Apex Court had examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment under the category of 'Health and Fitness Service". It is charging, collecting and paying the service Tax for the period from October 2005 to March 2006. But they have filed a refund claim on the ground that they are registered under the Karnataka Societies Registration Act and providing service to its own members. It is mutually consented between the members and the club. Therefore service tax is not applicable to the appellant club is examined by the Assessing Officer. While examining the said contention, the Assessing Officer has held that the service rendered by the club to its members come under the category of 'Health and fitness ser vice' specified in Section 65(51) of the Finance Act, 1994. The definition of ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Karnataka Shops and Commercial Establishments Act reads thus: "2(e) 'Commercial Establishment' means a commercial or trading or banking or insurance establishment, an establishment or administrative service in which persons employed or mainly engaged in office work, a hotel, restaurant, boarding or eating house, a cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such establishments as the State Government may by notification declare to be a commercial establishment for the purpose of this Act." 8. Strictly the definition of establishment may not be applicable for the limited purpose of establishment. The word used under sub-section (52) of Section 65 of the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 437 (Cal.) is also considered by the Tribunal. The Tribunal rightly not applied the said case to the facts of the present case in view of the fact that the respondent Commissioner in his order referred to the definition of 'club' and held that the exclusive clause specified in 65(25a)(i) of the Finance Act and rejected the said contention and further on the reference to the legal ground in paragraph 11 of the appeal memo, the Tribunal has rightly referred to the provisions of Section 65(51), (52) 65(105)(zw) and the same are extracted. After careful examination of the said definition provision, the Tribunal having regard to the undisputed fact that the club providing the facilities in its health club to its members. Therefore with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is not attracted to the goods sold in the club. As a matter of equivalence as held by the Supreme Court in the case of All India Federation of Tax Practitioners with reference to paragraph 18 and 19 is misconceived and the same do not apply to the facts of the case, in view of the definition 'any establishment' occurred in Section 65(52) of the Finance Act. Therefore the legal contentions are untenable. None of the questions raised in this appeal by the appellant urged on behalf of the appellant would arise for our consideration in view of the finding of fact recorded by the fact finding authority affirmed by the first Appellate Authority and Second Tribunal, by recording valid and cogent reasons. Accordingly, we affirm the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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