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2017 (9) TMI 1380

Classification of services - mandap keeper services - the revenue sought to levy service tax on the entire value i.e. including the value of room charges - whether the appellant is liable to pay service tax under the category of Mandap Keeper Service for the room rent received from hotel guest? - Held that: - the issue is decided in the appellant's own case Dukes Retreat Ltd. Versus Commissioner of Central Excise, Pune-I [2017 (5) TMI 465 - CESTAT MUMBAI], where the bench has categorically given finding that the entire amount of room rent collected by the appellant cannot be taxed under Mandap Keeper Service - the room rent cannot be charged to service tax under the head of Mandap Keeper Service. - Time limitation - Held that: - on the .....

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vely i.e. from the date of introduction of such new service in the statute book. On this proposition, the Appellant refers to and relies upon the judgement of the Hon ble Bombay High Court in the case of Indian National Ship Owners Association - 2009 (14) STR 289 affirmed by the Hon ble Supreme Court at - 2011 (21) STR 3 (SC). D. The sole basis for confirming the demand on the Appellant is the explanation to Notification No.1/2006-ST dated 1.3.2006 which reads as "expression hotel means a place that provides boarding and lodging facilities to public on commercial basis". The Appellant submits that this explanation cannot create a charge of tax and the purpose of this explanation is only to clarify how to construe expression hotel .....

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ce of any change in law or facts, by applying the principle of res judicata, the Revenue cannot agitate on the same issue for the subsequent period. H. In fact, applying the same principle, the Hon ble Tribunal vide its order dated 13.4.2017 in Appeal Nos.ST/129 and 130/2006-Mum, at para 8,has held that the lower authorities were in error in coming to a conclusion that the Appellant needs to be taxed under Mandap Keeper services for the entire amount of the room rent collected by them. I. Basis the above submission the Appellant submits the demand on merits is not sustainable. Even assuming without admitting that any service tax is payable by the Appellant and without prejudice to above submissions, the Appellant prays for cum tax benefit, .....

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n the banquet and food after availing of 40% abatement whereas against composite amount for banquet, food and room charges they have not included the charges of rooms. It is not in dispute that the appellant themselves are treating the service as Mandap Keeper Service but not including the room charges whereas for the purpose of service tax gross value of services should be taken for payment of service tax. There is no abatement or exemption provided in respect of part of the service charge of Mandap Keeper Service on room service. Therefore, in the absence of such provision, the appellant is supposed to consider the total value which includes banquet, food, hotel, rooms etc. and thereafter 40% abatement on such amount service tax should ha .....

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oom rent subject to further abatement as per Notification No.21/97-ST dated 26/06/1997. It has been informed to the bench that this order of the adjudicating authority has not been challenged by both the sides. If that be so, in our considered view Revenue cannot raise the same issue again which has attained finality intra-parties. 10. In view of the foregoing, we hold that the impugned orders are unsustainable and liable to be set aside and we do so. The impugned orders are set aside and the appeals are allowed. 5. From the above, particularly para 8, it can be seen that the bench has categorically given finding that the entire amount of room rent collected by the appellant cannot be taxed under Mandap Keeper Service. Categorically, the sa .....

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the sides and perused the appeal the records. We find that the department held the view that the charges collected for letting out rooms for accommodating guests has to be added in the gross value for the purpose of service tax liability under "Mandap Keeper Services". The only reason is that the person who hired the mandap /garden area has also booked some rooms for accommodating the guests. We find the reasons adopted by the lower authorities is without legal basis. The Tribunal examined similar set of facts and held that such room charges for letting out the rooms in the hotel cannot be included in the "Mandap Keeper Service" for service tax liability. Reference can be made to the decision of the Tribunal in the case .....

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espect of the charges recovered for renting of the hotel. The only submission by the Revenue is that the cited decision in the case of Rajmahal Hotel (supra) supports the Revenue's case. However, we find that the said decision only authorizes levy of Service Tax on renting of halls attached to the hotel but not in respect of renting of the hotel rooms. As such, we confirm the prima facie view taken by the Tribunal earlier and set aside the impugned order and allow the appeal. 6. In view of the above decisions, the issue is no more res integra as it was held that the room rent cannot be charged to service tax under the head of Mandap Keeper Service. 7. As regards the limitation, we find that on the same fact earlier, some proceedings wer .....

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