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2024 (4) TMI 35 - CESTAT NEW DELHILevy of service tax - bowling alley income - to be included in the Negative List under section 66D(j) of the Finance Act or not - scope of ‘amusement facility’ - Extended period of limitation - HELD THAT:- Keeping in mind the definition of amusement facility under section 65B(9) of the Finance Act, what is included in the Negative List in the context of the present case is access to amusement facilities where fun or recreation is provided by means of bowling alley in amusement parks, amusement arcades, water parks, theme parks or such other places, but does not include a place within such facility where other services are provided. The Centre provides recreational facilities to customers by way of offering bowling alley, video and other fun games, restaurant facility, sale of socks and supply of shoes. According to the appellant, the aforesaid facilities are independent of each other and are chargeable separately, depending on the services being availed by the customers. The appellant further claims that there is a clear demarcation between such recreational facilities, and that separate entry/admission fee is not collected for entry into the Centre. The order has disallowed the appellant from being covered under the scope of section 66D(j) of the Finance Act as it provides services other than bowling alley activity also at the Centre. The definition of ‘amusement facility’ does not disqualify a facility from being covered under its scope only because services other than fun or recreation are provided in any part or place of such facility. The definition only excludes such other places from the scope of amusement facility, which means that charges recovered for access to the excluded premises would continue to be taxable. ‘Amusement facility’ has been defined to mean a facility where recreation or fun is provided by means of bowling alleys. However, a place within such facility where services other than bowling alley are provided would not be covered under the definition of ‘amusement facility’ - The appellant earmarked space for fun or recreation such as bowling alley or video games. In such an area, no other services are provided. Further, charges to such areas are also separate. Thus, provision of access to such a facility (bowling alley) would be covered under the Negative List. The ‘access to’ an amusement facility would also mean the permission to use such facility against payment of an amount - it has to be held that the income received by the appellant from bowling alley would be covered under section 66D(j) of the Finance Act and, therefore, would not be leviable to service tax. Extended period of limitation - HELD THAT:- It would, therefore, not be necessary to examine the other contentions raised by the learned counsel for the appellant, including the contention that the extended period of limitation could not have been invoked in the facts and circumstances of the case. The impugned order dated 31.01.2019 passed by the Commissioner, therefore, deserves to be set aside and is set aside - appeal allowed.
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