TMI Blog2019 (4) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... . Penalty u/s 76 and 78 of FA - Held that:- The penalty imposed under Section 76 is set-aside, wheras penalty u/s 78 upheld. Time Limitation - Held that:- It is seen that the appellant had not declared the correct figures in their returns filed with the department and therefore, no benefit of limitation can be extended to the appellant. Benefit of cum-tax - Held that:- In view of the settled law, the benefit of cum-tax value cannot be denied to the appellant and the demand is required to be revised on that count. The appeal is partly allowed and the matter is remanded to the original adjudicating authority for re-quantification of demand. - Appeal No. ST/221/2010-DB - A/10624/2019 - Dated:- 1-4-2019 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri K. Patel and Ms. Khushboo, Chartered Accountants for the Appellant Shri S.N. Gohil, Superintendent (AR) for the Respondent ORDER Per: Raju This appeal has been filed by M/s. Greenwood Club Resorts against confirmation of demand of service tax, interest and imposition of penalties under Section 76 as well as 78 of the Finance Act, 1994. 2. The appellants are invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mandap keeper is defined as a person who allows temporary occupation of a mandap for a consideration for organising any official, social or business function [section 65(67)]. Whether hotels/restaurants 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 organising social, official or business functions 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)]. He also relied on the decision of Hon'ble Apex Court in the case of Tamil Nadu Kalyana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly distinguishable from the service rendered in a restaurant or hotel inasmuch as, in the case of outdoor catering service the food/eatables/drinks are the choice of the person who partakes the services. He is free to choose the kind, quantum and manner in which the food is to be served. But in the case of restaurant, the customer s choice of foods is limited to the menu card. Again in the case of outdoor catering, customer is at liberty to choose the time and place where the food is to be served. In the case of an outdoor caterer, the customer negotiates each element of the catering service, including the price to be paid to the caterer. Outdoor catering has an element of personalized service provided to the customer. Clearly the service element is more weighty, visible and predominant in the case of outdoor catering. It cannot be considered as a case of sale of food and drink as in restaurant. Though the Service Tax is leviable on the gross amount charged by the mandap-keeper for services in relation to the use of a mandap and also on the charges for catering, the Government has decided to charge the same only on 60% of the gross amount charged by the mandap-keeper to the custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Karnataka is with reference to Outdoor Catering Services rendered in an aeroplane and the other decision of the Tribunal in the case of Daspalla Hotels Ltd . it is in respect of evidence relied upon by the appellant with regard to VAT paid on the value of food and beverages sought to be taxed under Convention Services . In the present case, the demand is not under any of these services but on Mandap Keeper Service and as can be seen from the decision of the Hon ble Apex Court in the case of Tamil Nadu Kalyana Mandapam Assn. (supra), service tax liability is attracted in case the mandap keeper also performs catering services. Thus, we find that service provided by the appellant of place for conference along with catering and/ or room is liable to tax under the category of Mandap Keeper service at the material time. The appellant have not charged any amount separately for the facility and in those circumstances, Ld. Chartered Accountant suggested that service tax at the prescribed rates for such facility at the material time can be taken. Ld. Chartered Accountant pointed out that they had specified charge at different period for providing the space for conference. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em are kept open. The appeal is allowed accordingly. Therefore, in case where there is provision of stay along with food and conference facility, best judgment method can be applied to arrive at the value of conference facility, after necessary evidence is produced by the appellants. 6. The appellant also claimed that they have availed Cenvat credit only for the period prior upto 01.03.2006 and not thereafter. In those circumstances, the benefit of Notification No. 1/2006-ST dated 01.03.2006 cannot be denied to the appellants. 7. Penalty under Section 76 and 78 has been imposed on the appellant. In terms of decision of the Hon'ble Gujarat High Court in the case of Raval Trading Company (supra) the penalty imposed under Section 76 is set-aside. 8. The appellant have also sought benefit of limitation on the ground that entire data for issue of show cause notice was taken from the official record. It is seen that the appellant had not declared the correct figures in their returns filed with the department and therefore, no benefit of limitation can be extended to the appellant. The appellant have also sought benefit of cum-tax as they have not recovered any service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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