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CCE, Indore Versus M/s Apsara Restaurant & Vice-Versa

2015 (11) TMI 1044 - CESTAT NEW DELHI

Mandap keeper service - appellant contended that explanation in the definition of Mandap in Section 65(66) ibid to the effect that social function includes marriage was inserted on 1.6.2007 and therefore prior thereto property let out for a consideration for a marriage function would not be covered under Mandap Keeper Service. - Held that:- Even before the explanation was added from 1.6.2007 Mandap meant inter alia immovable property etc. let out for a consideration for organizing any official, .....

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ating authority as well as by the appellate authority, the appellant-assessee was not able to provide documentary evidence regarding the value of such goods and therefore benefit of the said notification was rightly denied to them. Indeed the lower authority in the absence of the documentary evidence of the value of the goods sold allowed 40% abatement in terms of notification 1/2006-ST which the assessee had itself claimed and paid service tax accordingly. Thus there is no infirmity as far as t .....

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der section 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time - Decided partly in favor of assessee. - No. ST/111/2009-CU(DB) & No. ST/368/2009 - F. Order No. 51458-51459/2015 - Dated:- 26-3-2015 - Mr. Justice G. Raghuram, President And Mr. R.K. Singh, Member (Technical) For the Petitioner : Shri Krishan Garg For the Respondent : Shri Devender Singh, Jt. CDR And Shri M.R. Sharma, D.R .....

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period, penalties under Sections 76 and 78 were not mutually exclusive and therefore the Commissioner (Appeals) order setting aside the penalty under Section 76 is not legal and proper and sought restoration of penalty under Section 76. 2. The appellants-assessee is providing Mandap Keeper service during which they also provided food/beverages. As the appellant-assessee was not able to provide evidence with regard to the value of the goods sold, the service tax demand was confirmed by giving 40% .....

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em under Notification No. 1/2006-ST, they are entitled to the benefit of Notification No. 12/2003 up to the extent of the value of the goods sold by them. They also contended that explanation in the definition of Mandap in Section 65(66) ibid to the effect that social function includes marriage was inserted on 1.6.2007 and therefore prior thereto property let out for a consideration for a marriage function would not be covered under Mandap Keeper Service. 3. We have considered the contentions of .....

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nizing any official, social or business function. A marriage function is also a social function. Thus we are in no doubt that the said explanation added on 1.6.2007 was merely in the nature of ex abundante cautela and therefore has retrospective applicability. 4. As regards the contention of the appellant-assessee that benefit of Notification No. 12/2003-ST should have been extended to them, we would like to reproduce the said provision hereunder : In exercise of the power conferred by Section 9 .....

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It is evident from the wording of the above notification that benefit thereof can be granted only if the assessee is able to produce documentary evidence showing the value of the goods sold. As has been brought out by the original adjudicating authority as well as by the appellate authority, the appellant-assessee was not able to provide documentary evidence regarding the value of such goods and therefore benefit of the said notification was rightly denied to them. Indeed the lower authority in .....

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October 2006 to March 2007 V(ST)3-24/MK/07-08 18.10.2007 Recurring nature April 2007 to March 2008 V(ST)3-102/SCN/MK/08-09 15.9.2008 Recurring nature The show cause notices dated 18.10.2007 and 15.9.2008 were merely recurring in nature for the periods subsequent to period covered by the first show cause notice dated 2.3.2007 and therefore in the given circumstances in the light of the Supreme Court judgement in the case of Nizam Sugar Factory Vs. CCE - 2006 (74) RLT 564 (SC), the allegation of .....

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tent that the penalty under Section 76 ibid in respect of the said two show cause notices is to be restored and penalty under Section 78 ibid set aside. 6. Regarding Revenue s appeal that penalty under Section 76 ibid should not have been dropped even in respect of the first show cause notice because during the relevant period penalties under the said two Sections were not mutually exclusive we agree that during the relevant period (prior to 16.2.2008) there was no legal bar against imposing pen .....

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