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2019 (4) TMI 184

4 - Held that:- Tribunal in the case of Hotel Amarjit Pvt. Limited [2014 (4) TMI 920 - CESTAT MUMBAI] has settled the issue regarding liability of catering provided with Mandap Keeper service and held that the services rendered by the mandap keepers as a caterer would also be liable to service tax under the category of ‘Mandap Keeper Services’. - 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. - Benefit of N/N. 1/2006-ST dated 01.03.2006 - Held that:- 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. - 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 .....

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ision of Hon'ble Gujarat High Court in the case of Raval Trading Company vs. CST - 2016 (42) STR 210 (Guj.) simultaneous penalty under both the sections cannot be imposed. He pointed out that the entire data was available in their official record and therefore, there is no misstatement or suppression of facts to invoke the extended period of limitation. 4. Ld. AR relied upon the impugned order. He pointed out that vide Circular No. 96/7/2007-ST dated 23.08.2007, following has been clarified:- 012.01/ 23-8-07 Mandap is defined as any immovable property as defined in section 3 of the Transfer of Property Act, 1882 and includes any furniture, fixtures, light fittings and floor coverings therein let out for a consideration for organizing any official, social or business function [section 65(66)]. 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/res .....

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nature of the event to be solemnized etc. In fact the logistics of setting up, selection and maintenance is the responsibility of the mandap keeper. The services of the mandap-keeper cannot possibly be termed as a hire purchase agreement of a right to use goods or property. The services provided by a mandap-keeper are professional services which he alone by virtue of his experience has the wherewithal to provide. A customer goes to a mandap-keeper, say a star hotel, not merely for the food that they will provide but for the entire variety of services provided therein which result in providing the function to be solemnized with the required effect and ambience. Similarly the services rendered by outdoor caterers is clearly 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 .....

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lusive powers to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution. As per Article 246(3), the State Government has exclusive powers to make laws with respect to matters enumerated in List II (State List). In respect of matters enumerated in List III (Concurrent List) both Parliament and State Government have powers to make laws. The service tax is made by Parliament under the above residuary powers. 5.3 From the above decision of the Hon ble Apex Court, it is clear that the services rendered by the mandap keepers as a caterer would also be liable to service tax under the category of Mandap Keeper Services . The decision relied upon by the consultant of the Hon ble High Court 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 decisio .....

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of of room rent being charged and bills raised in that behalf. In the circumstances, the impugned order is quashed and set aside. The Appeal is restored to the file of the Tribunal so as to allow the appellant to make an application and for production of further evidence, material and relevant to the above controversy. If such an application is made, the Tribunal should decide it in accordance with law. Thereafter, the Appeal shall be decided afresh and by taking into account this evidence which is permitted to be produced in pursuance of our order. However, we clarify that we have not expressed any opinion on the rival contentions and particularly on the demand of Service Tax and interest. All of them 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 .....

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