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TMI Blog2018 (7) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... Services in terms of the provisions of Section 67 of the Act, 1994 ?" 3. Counsel for the appellant has taken us to the order of the first authority where pursuant to the notice issued by the authority after considering the definition, it has observed as under :- "5.4 The issue before me for decision are that ( i ) whether the charges of room charged from the clients who entered under composite contract for holding/organizing the functions of marriage, conference & meetings are includible in the gross amount in terms of the Section 67 of the Finance Act, 1994 and leviable to Service Tax under the provisions of Section 66 and 68 of the Finance Act, 1994; (ii) if so, whether the same is recoverable under proviso to Section 73 (1) of the Act and also whether the assessee is liable for penal action under Sections 76 and 78 of the Finance Act, 1994. 5.5 To begin with, the legal provisions and the clarification issued by the Board need to be pondered upon, being the basis of the issuance of the subject notice:- (i) As per Section 65(66) of the Finance Act, 1994 Mandap means any immovable property as defined under Section 3 of the Transfer of Property Act, 1982 (4 of 1982) and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng such expenditure or costs are includable in the value of taxable service. Further explanation 2 to the rule clarifies that, the value of taxable service is the total amount of the consideration consisting of all components of taxable service and it is immaterial that the details of individual components of the total consideration is indicated separately in the invoices. (vii) The Central Board of Excise and Customs vide their letter F.No. 332/82/97-TRU dated 24.9.1997 clarified that the hotels and restaurants which let out their banquet halls, rooms, gardens etc. for holding/organizing any marriages, parties, conferences, shows etc. are covered under the definition of a Mandap Keeper. It is essential to note that top attract the Service Tax on services rendered by Mandap Keeper it is mandatory that the Mandap Keeper has let out some room, space or hall for some period of time and during such period the room , space or hall is essentially in exclusive (temporary) possession of the person to whom it is so let out. In other words there is a certain exclusivity which has been afforded to the person to whom it has been let out. Further, the Central Board of Excise and Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are an extension/integral part of the mandap. To take one example which is available on record, I have seen one of the letter which is a 'Revised Function Proposal for Mr. Luhadia's event' signed by one Shri Ram Rathore, Sales Manager wherein bookings were made for holding wedding and reception at Naksha Garden, Rambagh Palace. This is a relied upon document to the show cause notice. In the said proposal, Palace rooms, Historical Suites, Royal Suites, Grand Suites, Standard Rooms etc. were booked stating them as 'at a very special rates for this wedding' The Historical Suites were offered at Luxury room rates. To sum up, it is most appropriate to say that these room bookings are nothing but the facilities provided by the Mandap Keeper to the clients for a consideration in relation to such use of the mandap. The interpretation of the definition of the service does not change depending upon the venue, whether it is a house or a kalyanmandapam or a five/six star hotel. The entire premises including the rooms for stay become one mandap. Especially in an Indian Wedding, there are a number of functions being organized in the hall, garden as well as in the rooms whether booked for stay or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, the benefit of waiver of penalty under Section 80 of the Finance Act, 1994, cannot be extended. I find that once it is held that extended period is in vocable in the case then the penal provisions as contained in Section 78 of the Act automatically follows and inescapable. I rely upon the judgment of the Hon'ble Supreme Court in the case of Rajasthan Spinning & Weaving Mills reported in 2009 (238) ELT/3(S.C.) wherein it was held that " both the proviso to sub-section 1 of Section 11A and Section 11AC use the same expressions: " ....by reason of fraud, collusion or any willful mis statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made there under with intent to evade payment of duty,..". In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under Section 11A(1) states that the escaped duty was the result of any conscious and deliberate wrong doing and in the order passed under Section 11A(2) there is a legally tenable finding to that effect then the provision of Section 11AC would also get ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts letting out their halls, rooms etc. for social, official or business functions fall within the definition of "mandap" and allowing temporary occupation of halls, rooms etc. by such hotels/restaurants for organizing any official, social or business function is liable to service tax under "mandap keeper service" [Section 65(105)(m)]? Halls, rooms etc. let out by hotels/restaurants for a consideration for organizing social. Official or business function are covered within the scope of "mandap" (section 65(66)), and such hotels and restaurants are covered within the scope of "mandap keeper" (Section 65(67)). Accordingly, service tax is leviable on services provided by hotels and restaurants in relation to letting out of halls rooms etc. for organizing any official, social or business function under mandap keeper service (section 65(105)(m)). 14. I have carefully gone through the case records, grounds of appeal and submissions made by appellant during personal hearing. The issue for consideration is whether service tax is leviable on the value of rent charges, charged from the customers in respect of the rooms booked by the appellant for the puirpose of marriage, conference & mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sustainable on merits the appellant is also liable to pat interest thereon. Held accordingly. 1. I find that the appellant have not intimated the facts of recovering amount on account of renting of rooms and had suppressed the same with intent to evade payment of service tax, therefore demand for extended period is maintainable. Accordingly, I hold that the services provided by the appellant renting of rooms in connection with marriage ceremony is covered under the definition of Mandap Keeper's services during the relevant period and the gross amount charged for the services is the value of services for levy of service tax. Accordingly I hold that the demand has rightly been confirmed. 2. As regard, imposition of penalty under section 76 & 78, I find that, the demand has rightly been confirmed, violation of the provisions of Finance Act, 1944 by the appellant has been proved, therefore imposition of penalty under Section 76 & 78 of the Finance Act, 1994 are sustainable in law. 3. The facts and circumstances of the instant case are different that from the cited cased by appellant, therefore, the ratio of the relied upon the case laws is not applicable in the instant cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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