TMI Blog2017 (9) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is entitled to avail exemption - In this case, since the credit was reversed the benefit of N/N. 1/2006-ST should be available to the appellant for claim of abatement. In view of CBEC vide Circular dated 10.05.2011, since the appellant has not provided the services mentioned therein, service tax demand on the restaurant service cannot be confirmed against the appellant. Appeal allowed - decided in favor of appellant. - ST/50635/2014-CU[DB] - ST/A/55116/2017-CU[DB] - Dated:- 13-7-2017 - Mr. S.K. Mohanty, Member (Judicial) And Mr. Ashok. K. Arya, Member (Technical) Mr. Pradeep Jain, CA, for the Appellant Mr. Ranjan Khana, DR for the Respondent ORDER Per: S.K. Mohanty This appeal is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) (zzzv) of the Finance Act, 1994 has not been satisfied. The ld. Advocate has relied on the Circular No.139/8/2011-TRU dated 10.05.2011 to state that the open air restaurant will not fall under the purview of the taxable service. 3. On the other hand, ld. DR appearing for the respondent reiterated the findings recorded in the impugned order. 4. Heard both sides and perused the records. 5. On perusal of the case records, we find that the benefit of Notification No.1/2006-ST was denied to the appellant on the ground that it had availed cenvat credit on the input services used for providing the output service. The fact is not under dispute that the credit so availed was reversed by the appellant suo moto and no proceedings were in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns (i) it should have the facility of air condition in any part of the establishment and (ii) it should have license to serve alcoholic beverages. Within the same clearly demarcated and separately named, the ones which satisfy both the criteria is only liable to service tax. 7. In view of the above referred Circular issued by the CBEC, since the appellant has not provided the services mentioned therein, service tax demand on the restaurant service cannot be confirmed against the appellant. 8. In view of the above, we do not find any merits in the impugned order. Accordingly, after setting aside the same, we allow the appeal in favour of the appellant. (Pronounced in the open court on 13.07.2017) - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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