TMI Blog2018 (12) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... and and only contesting the imposition of penalty under Section 78 of the Act and will deal with the penalties separately. Short payment of service tax - Business Exhibition service - Mandap keeper services - Held that:- There is a dispute regarding the method of calculation and it requires further examination and decision by the original authority and the demand on this count needs to be remanded to the original authority - matter on remand. Interest on delayed payment of service tax - stall rentals received in advance - Held that:- Merely because some applicants are not allotted a stall and their amounts are refunded to them the service tax does not get payable only after the allotment process is complete. As there was a delay in payment of service tax on stall rentals received is liable to interest and confirmed penalty - demand upheld. Renting of immovable property service - Held that:- The appellants paid the service tax along with interest and is only contesting the rent pertaining to the months of April and May, 2007 on the ground that the renting of immovable property became a taxable services vide Section 65 (105) (zzzz) of the Finance Act, 1994 is w.e.f 01.06.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inments, amusements, etc., is a state subject. He also argues that the tickets are sold to the visitors to the exhibition to allow them entry into the exhibition premises where entertainment and amusement facilities are also provided. Business exhibition means an exhibition to market or to promote or to advertise or to showcase any product or services, intended for the growth in business of the producer or provider of such product or services, as the case may be (Section 65 (19a) of the Finance Act, 1994) and the business exhibition service is defined in section 65 (105) (zzo) of the Finance Act, 1994 as a service provided or to be provided to an exhibitor, by the organiser of business exhibition, in relation to business exhibition. These tickets cannot be charged under the business exhibition service up to 01.07.2012 as the service is provided to the visitors and not the exhibitors. W.e.f. 01.07.2012 section 66D has been introduced in the Finance Act, 1994 and all services are made chargeable to service tax subject to a negative list. It is his submission that activity of admission to entertainment events or access to amusement facilities is covered in the negative list. He draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempted during the period of dispute vide Section 11C Notification No. 45/2010-ST dated 20.07.2010. iii) Publicity income which they received for sale of space or time for advertisement under advertisement service during the period 2005-2006 to 2009-2010: Learned Counsel submits that he is not pressing this point and they have already paid the service tax along with interest on delayed payment of service tax and only contesting the imposition of equivalent penalty under Section 78 is set aside. iv) Short payment of service tax paid by the appellant on the Business Exhibition and Mandap keeper services: Learned Counsel submits that they have paid service tax during the relevant period and they are not clear to how this differential duty was demanded by the Department and had specifically requested the Department to provide the break-up of Annexure D to the show cause notice so that they can provide explanations. The respondent has blindly confirmed this demand without providing the details. He prays that this matter may be remanded back to the original authority with a direction to provide the details of the differential duty demanded and after considering their e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned, the Department proposed to tax this under Business Exhibition service. Business exhibition means an exhibition to market, or to promote, to advertise, or to showcase any product or service intended for the growth in business of the producer or provider of such product or service and the services to an exhibitor, by the organizer of a business exhibition, in relation to business exhibition is business exhibition service. The tickets sold to general public for entering into the exhibition cannot by any stretch of imagination be called the service rendered to exhibitor. This service is rendered to the visitor to enable him to enjoy the facilities in the premises. Therefore, prior to 01.07.2012 the tickets sold to visitors cannot be charged to service tax under business exhibition services. Post 01.07.2012, all services are chargeable to service tax under Section 66D but for the negative services. The appellants claim that their exhibition is merely an amusement facility does not hold any water. It is true that there are also amusement facilities within the premises but that does not characterize it as an amusement facility. The exclusion of amusement facility under Section 65 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 65 (105) (zzzz) of the Finance Act, 1994 is w.e.f 01.06.2007. We find strong force in the arguments of the appellant and hold that the demand to this extent needs to be set aside and we do so. 8. As far as the imposition of the penalties under Section 78 on the appellant is concerned, we find that the appellant is a charitable society registered as such and is engaged in the organizing industrial exhibition. It is difficult to attribute malafide intention to evade payment of service tax so as to defraud the Government by the society. Even if their understanding the law is different from the understanding of the Department that should not form a basis for imposition of penalties we therefore find that this a fit case to set aside the penalties imposed under Section 80 of Finance Act, 1994. In conclusion, the demand of service tax on the value of entry tickets sold to general public is upheld w.e.f 01.07.2012 and is set aside for the earlier period. The demand of service tax on the sale/ supply of electricity are set aside. The demand of service tax on publicity income for sale of space or time of advertisement and advertisement services is upheld. The interest on delayed pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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