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TMI Blog2023 (9) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... RY FEDERATION LIMITED VERSUS COMMISSIONER, CENTRAL EXCISE, JAIPUR [ 2022 (5) TMI 482 - CESTAT NEW DELHI] . It was held in the Calcutta Club that The expression body of persons may subsume within it persons who come together for a common purpose, but cannot possibly include a company or a registered cooperative society. Thus, Explanation 3(a) to Section 65B(44) does not apply to members clubs which are incorporated. Whether a demand raised under the wrong Head can be confirmed for the reason that it is taxable to duty under one Head or the other? - HELD THAT:- In the facts of the case, the demand was made on account of services provided by the assessee in respect of the supply of third-party software, software developed in house or customised software/ The assessee had temporarily transferred the right to use the said software to their clients. Thus, prior to 16th May 2008, such service was classifiable under the category of Intellectual Property Service and with effect from 16th May, 2008, it was classifiable under the category of Information Technology Software . In fact, the management, maintenance and repair services of computer hardware as well as software under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Head Business Exhibition Service on the basis of difference between ST-3 Returns and balance sheet; Rs.2,82,54,686/- on the basis of difference between ST-3 Returns and balance sheet under the Head Renting of Immovable Property Service . The demand raised in the show-cause notice was confirmed, along with interest and penalties, vide OIO dated 05.10.2012, which is impugned in the present appeal. 2. Shri B.G. Chidananda Urs, learned Counsel for the appellant, submits that the membership fees is not liable to service tax as there are no two persons recognizable under law to tax such transaction. He relies on the following: State of West Bengal Vs Calcutta Club Limited- 2019 (29) GSTL 545 (SC). Karnataka Co-operative Milk Producers Federation Ltd.- 2022 (61) GSTL 39 (Tri. Bang.) Rajasthan Co-operative Dairy Federation Ltd.- 2022 (65) GSTL 350 (Tri. Del.) upheld by the Hon ble Supreme Court- 2022 (65) GSTL 257 (SC). 3. Coming to the demand of service tax on the income received in organising seminar, workshops and conferences, the confirmation was on a wrong classification, the activity cannot be classified under Club or Association Service ; the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iterates the findings of the OIO and submits that the Adjudicating Authority has considered all the issues raised by the appellants and has given findings on each of the points; thus, the Adjudicating Authority has come to a considered opinion on the issues raised. 8. Heard both sides and perused the records of the case. Brief issues that demands our consideration are (i) whether the membership fee collected by the appellants is exigible to service tax under Club or Association Service (ii) whether a demand raised under the wrong Head can be confirmed for the reason that it is taxable to duty under one Head or the other and (iii) whether a demand confirmed on the basis of difference in the figures between ST-3 Returns and balance sheets. 9. Coming to the first issue, we find that the issue is no longer res integra having been decided by a number of judgments. Hon ble Apex Court laid down the principle in the case of Calcutta Club (supra) and re-affirmed the same in the case of Rajasthan Co-operative Dairy Federation Ltd.(supra). It was held in the Calcutta Club (supra) that: 82. We have already seen how the expression body of persons occurring in the explanation to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority to confirm a demand under some Heading whereas it was proposed to confirm the same under some other Heading. We find that Hon ble Apex Court in the case of M/s 3i Infotech Ltd. (supra) held that: 10. It is pertinent to note here that the first show cause notice dated 19th October 2009 contained a demand for service tax under the taxable service of Management, Maintenance and Repair and the rest of the three notices contain a demand under classifiable service Information Technology Software . In the facts of the case, the demand was made on account of services provided by the assessee in respect of the supply of third-party software, software developed in house or customised software/ The assessee had temporarily transferred the right to use the said software to their clients. Thus, prior to 16th May 2008, such service was classifiable under the category of Intellectual Property Service and with effect from 16th May, 2008, it was classifiable under the category of Information Technology Software . In fact, the management, maintenance and repair services of computer hardware as well as software under the annual maintenance contract was covered by the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration- 2020 (32) GSTL 350 (Tri. Kolkata) held that: 8. Having heard both the sides, we are of the view that the entire operation of transportation of the crude from Haldia port to BRPL is covered by a single contract. The terminal facilities are only intermediate operation of the transportation of the goods through pipeline. Since, the requisite amount of the service tax has already been paid on the service of transportation through pipeline provided by the respective parties, we feel that the terminal facilities being the integral part of the entire pipeline facilitating the transportation of the liquid crude, it will not be legally correct to consider the terminal facilities as independent facilities for which no real transaction of service charges have actually taken place and therefore demanding a service tax on the notional value taken by the appellant only for the purpose of accounting of the cost of the different units working under the appellants, will be not in the interest of the service tax law. Since, service tax has already been paid on the entire amounts which have been charged for transportation of the crude through pipeline, we think that charging service tax ..... 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