Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2019 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (7) TMI 1679 - CESTAT NEW DELHICENVAT Credit - demand of service tax alongwith interest and penalty - restaurant services - short term accommodation services - contravention of Section 68 of Finance Act read with Rule 6 of Service Tax Rules 1994 read with Notification No. 1/2006-ST dated 1.3.2006 as amended by Notification No. 34/2011-ST dated 24.4.2011. Abatement as per Notification No. 1/2006-ST - proportionate credit - Rule 6(3D) of the Cenvat Credit Rules - HELD THAT:- The issue decided in their own case M/S THE OBEROI RAJVILAS, M/S TRIDENT, M/S OBEROI VANYAVILAS VERSUS CCE, JAIPUR [2018 (5) TMI 1715 - CESTAT NEW DELHI] where it was held that the procedure prescribed in Rule 6(3A) of the Credit Rules is only to make the provisions of Rule 3 workable. By means of proportionate reversal the requirement of Rule 6(3) has been substantially satisfied. This is also provided in Rule 6(3D) of the Cenvat Credit Rules which was introduced at a later date - benefit of abatement cannot be denied - demand do not sustain. Demand of service tax under restaurant service for mini bar - HELD THAT:- The activity per se is not a service as the customers provides services to themselves after paying the applicable VAT. Therefore the demand on this score is not sustainable. Payment of service tax in respect of health club and finance service dry cleaning etc. - demand has been raised merely on the basis of value as reflected in the balance sheet as compared with the ST returns - HELD THAT:- The appellant has extended various count of discount to their customers which would definitely not with value of such services placing reliance on the decision of Bhayana Builders (P) Ltd [2018 (2) TMI 1325 - SUPREME COURT]. The discount has been clearly and correctly reflected in their ledger account for the impugned period however same has not been taken into account while issuing the show cause notice or confirmation the demand - We are in agreement with the submission of learned Advocate that the discount is clearly mentioned in the ledger account as at page 20-58 of appeal paper book. Also, the appellant is entitled for the exemption as contained in Notification No. 14/2008 for providing the exemption paying to the foreign based service provider and travel agent - there is no justification of levying service tax on this service and the same accordingly, not sustainable. Demand on tour operator service - HELD THAT:- The activities being undertaken by the appellant is not falling within the ambit of tour operator service which has two parts. First part covers person who is engaged in the business of planning, scheduling, organising or arranging tours and the second part covers any person operating tour in tourist vehicle having permit granted under Motor Vehicle Act/Rule. The appellant has only provided pick up and drop facility for elephant ride up to Kanota dam. This, therefore, cannot be treated as tour operator service as per the definition of service under the Act. The appellant is not engaged in business of operating tour and is recognised as luxury hotel and has not tour operator, therefore, demand is not sustainable. Extended period of Limitation - HELD THAT:- The same is merely on the basis of non production of document by the appellant before the adjudicating authority and the appellate authority. It has been brought to our notice that these documents were in fact produced by the appellant before the lower authorities. However, the same has not been considered by them - demand pertaining to the Cenvat credit is also not sustainable and liable to be set aside. Appeal allowed - decided in favor of appellant.
|