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TMI Blog2008 (8) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... category, hence refund is denied X X X X Extracts X X X X X X X X Extracts X X X X ..... cability of the revenue tax of the country. Hence, members club is not liable to pay Service Tax in allowing its members to use its space as mandap. This was held by the Hon'ble High Court of Calcutta in the case of Saturday Club Ltd. v. Asstt. Commissioner, Service Tax Cell 2005 (180) ELT 437/1 STT 64. The learned advocates relied on various case laws. It was also pleaded before the Tribunal that the impugned order is beyond the scope of the show-cause notice. It was urged that the show-cause notice proposed classification of the service rendered by the appellants under the category of "Health and Fitness Services". However, the Commissioner (Appeals) in the impugned order has discussed the definition of "Club" and held that the exclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds providing any health and fitness service. The impugned order has failed to appreciate the fact that subscription, which was collected from its members, was towards using the facility of 'health centre' and not towards rendering of any health and fitness service'. The impugned order is therefore liable to be quashed." So, above is the submission of the appellants. Coming to the definition of the "health and fitness service" in terms of section 65(51); section 65(52); section 65(105)(zw) and section 65(25a), they have been defined as follows:- Definitions as per section 65 of Finance Act 1994 "(51) 'health and fitness service' means service for physical well being such as, sauna and steam bath, Turkish bath, solarium, spas, reducing or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s centre" means any establishment, including a hotel or a resort, providing health and fitness service. When I go by that, definitely the appellant club can be called as a "health club and fitness centre" because they have a health centre in their club. It cannot be said that the appellant is excluded from the definition of "health club and fitness centre", because any establishment is covered and a club by all means is an establishment and none can deny that a club is not an establishment. Therefore, the appellant club is definitely an establishment providing such a service. In fact, in the inclusive definition of "health club and fitness centre", even a hotel, resort, etc., are included. "Taxable service" is a service provided to any pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner, Service Tax Cell 2005 (180) ELT 18/1 STT 15. These points have been discussed by the Commissioner (Appeals) and he had given a finding that they would not come under the excluded category. While giving such a finding, he has also stated in Paragraph 14 that the appellant who had registered as "health club and fitness centre" and paid the Service Tax due to the Government and are not entitled to any refund. As he has upheld the order of the Original Authority, I do not find that the impugned order is beyond the scope of the show-cause notice. Moreover, in all their pleadings, the appellants have not explained why they would not come under the category of "health club and fitness centre". This point is completely lacking in their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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