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TMI Blog2022 (2) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants is to be seen to be in the direction of benefit of its members i.e., themselves. The appellants are registered cooperative society and any such activity rendered by them to their member societies is a service to themselves and there is no service provider service receiver relationship between the members of the same organisation. The issue before us is squarely covered in favour of the appellants in view of decision in the case of M/S CHIPLUN NAGARI SAHAKARI PATSANSTHA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND VICE-VERSA [ 2015 (10) TMI 1857 - CESTAT MUMBAI ] where it was held that Section 65(25a), Section 65(105)(zzze) and Section 66 of the Finance (No. 2) Act, 1994 as incorporated/amended by the Finance Act, 2005 to the extent that the said provisions purport to levy Service Tax in respect of services purportedly provided by the petitioner club to its members, to be ultra vires. Learned AR places reliance on Kaira District [ 2002 (11) TMI 97 - SUPREME COURT ] the issue discussed therein was whether the apex body and the cooperative societies are related persons within the meaning of Section 4(4)(c) of Central Excise Act, 1944. Therefore, it is very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g advice on the applicability of service tax, however, there was no written communication and the appellants were orally advised that they are not liable to pay any service tax. An investigation has been initiated and the appellants paid ₹ 1,80,34,015/- and lodged their protest dated 1.6.2006. They filed a refund claim on 6.12.2007 which came to be rejected and such rejection was upheld by Commissioner (A) and such rejection was appealed against by the appellant in ST/797/2009. 2. Meanwhile, department has also issued a show-cause notice dated 13.5.2008 alleging that charges received by the appellant from its members was in consideration for the services provided under the category of Business Auxiliary Service , Commercial Training or Coaching Services and Consulting Engineering Services ; demands of ₹ 2,26,52,152/-, ₹ 45,20,550/- and ₹ 5,972/- were confirmed under the respective categories vide OIO No.04/2010 dated 2.3.2010, the same is assailed in Appeal No.ST/1143/2010. 3. Learned counsel for the appellant submits that services rendered by them were to their own members and there was no service provider and service receiver relationship and pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Ltd. vs. UOI: 2015 (37) STR 961 (Guj.) (iv) Ranchi Club Ltd. vs.CCE: 2012 (26) STR 401 (Jhar.) 3.3 Learned counsel also submits that the issue is also time barred inasmuch as there was no wilful suppression of facts or contravention of provisions of act with intent to evade payment of duty as the appellants themselves have approached the department with a request for clarification and all the facts were placed before the authorities way back in 2004 whereas the show-caused notice came to be issued in 2008. Therefore, suppression of fact cannot be invoked in view of the apex court judgment in the case of Continental Foundation Joint Venture: 2007 (216) ELT 177 (SC) and Chemphar Drugs and Liniments: 1989 (40) ELT 276 (SC). 4. Learned AR for the department reiterates the findings of Order-in-Original and Order-in-Appeal and relies upon the case of Kaira District Co.op. Milk Producers Union Ltd.: 2002 (11) TMI 97 (SC)/2002 (146) ELT 502 (SC) and submits that in view of Madras High Court decision in the case of Nataraj and Venkat Associates: 2015 (40) STR 31 (Mad.) to hold that time limit under Section 11B is applicable even for refund of tax paid under a mistake of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d : The word constituted does not necessarily mean created or set up , though it may mean that also. It also includes the idea of clothing the agreement in a legal form. In the Oxford English Dictionary, Vol. II, at pp. 875 876, the word constitute is said to mean, inter alia, to set up, establish, found (an institution, etc.) and also to give legal or official form or shape to (an assembly, etc.) . Thus the word in its wider significance would include both, the idea of creating or establishing, and the idea of giving a legal form to, a partnership. The Bench of the Calcutta High Court in the case of R.C. Mitter and Sons v. CIT [(1955) 28 ITR 698, 704, 705] under examination now, was not, therefore, right in restricting the word constitute to mean only to create , when clearly it could also mean putting a thing in a legal shape. The Bombay High Court, therefore, in the case of Dwarkadas Khetan and Co. v. CIT [(1956) 29 ITR 903, 907], was right in holding that the section could not be restricted in its application only to a firm which had been created by an instrument of partnership, and that it could reasonably and in conformity with commercial practice, be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly covered in favour of the appellants in view of ratios and case cited and discussed above. Learned AR places reliance on Kaira District (supra). We find however that the issue discussed therein was whether the apex body and the cooperative societies are related persons within the meaning of Section 4(4)(c) of Central Excise Act, 1944. Therefore, it is very clear that the ratio is clearly distinguishable on facts itself. Therefore, we hold that the demand of service tax vide impugned order in appeal No.ST/1143/2010 does not survive on merits. Learned counsel for the appellants also submits that the show-cause notice is time barred. As submitted by the appellant, we find that the appellants have proactively informed the department in 2004 itself about their activities and sought clarification on the excisability to service tax. The department instead of giving clarification have decided to investigate the matter after two years and issued show-cause notice after further two years. In place of invoking extended period in cases of suppression of fact with an intent to evade payment of duty or tax, we find that the department chose to invoke extended period in a case where the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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