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2014 (4) TMI 920 - CESTAT MUMBAIDemand of service tax - Mandap Keeper Services - Bar of limitation - Held that:- services rendered by the mandap keepers as a caterer would also be liable to service tax under the category of ‘Mandap Keeper Services'. The decision relied upon by the consultant of the hon'ble High Court of Karnataka is with reference to ‘Outdoor Catering Services' rendered in an aeroplane and the other decision of the Tribunal in the case of Daspalla Hotels Ltd it is in respect of evidence relied upon by the appellant with regard to VAT paid on the value of food and beverages sought to be taxed under ‘Convention Services'. In the present case, the demand is not under any of these services but on ‘Mandap Keeper Service' and as can be seen from the decision of the hon'ble apex Court in the case of Tamil Nadu Kalyana Mandapam Assn. (2004 (4) TMI 1 - SUPREME COURT OF INDIA), service tax liability is attracted in case the mandap keeper also perform catering services. Appellant did not declare to the department the non-inclusion of food charges in the consideration received nor did they declare the receipt of consideration in the ST-3 returns. Thus, there is a willful mis-statement of facts with an intent to evade tax on the part of the appellant. Therefore, the extended period of time has been rightly invoked to confirm the Service Tax demand and we hold accordingly. As regards the penalty imposed under Section 78, the penalty under the said Section would apply only when there is a suppression of facts or willful mis-statement of fact with an intent to evade Service Tax on the part of the assessee. In the present case, from the records, it is clearly seen that prior to 1.4.2005, the appellant was discharging Service Tax correctly in accordance with law by paying Service Tax on the entire consideration received for both catering charges as also banquet hall charges w.e.f. 1.4.2005, the assessee deliberately split up the charges by issuing the separate bills by splitting into catering charges and banquet hall charges. This conduct of the assessee clearly reveals the intention to evade payment of Service Tax on the charges collected as catering charges. Therefore, penalty under Section 78 is clearly imposable. However, penalty under both Section 76 and 78 are not imposable after 10.5.2008 when the provisions were amended. Therefore, for the period after 10.5.2008, no penalty would be imposable under Section 76 of the Finance Act, 1994. Matter has to go back to the adjudicating authority for re-computation of the Service tax demand and re-determination of consequential interest and penal liabilities - Decided partly in favor of the assessee.
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