TMI Blog2019 (7) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... to enjoy various games. The word amusement being common in the expressions amusement park and amusement facility it is worthwhile to know the difference between a park and a facility to arrive at a conclusion as to whether the Applicant s premises is an amusement park or an amusement facility . The meaning of a park in various dictionaries say that a park is a large of land used for a particular purpose - In the instant case the applicant has placed equipments in an area within the Oberoi mall. Therefore there is should not be a second thought to call it an amusement facility rather than an amusement park . Applicant are engaged in providing amusement facility services and running family entertainment center in Oberoi Mall. Applicant is also advertising its activities in the public domain as providing amusement facilities - the subject services/activities supplied by applicant by deploying gaming machines and equipments would not fall within the expression, as an amusement park , but fall under amusement facilities. The GST rate on operating gaming zone in one of leading malls in Mumbai is @ 28% w.e.f. 25.1.2018. - GST-ARA-109/2018-19/B-37 - - - Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of games involving physical as well as mental skills which are coin operated and card operated such as: - Kiddie Rides (i.e. Carousel) - Arcade Games (i.e. Car Drive Game) - Redemption Games (i.e. Ball Drop Game) - Play area with entry and exit inside our premises 1.6 A copy of the brochure containing the brief of our gaming zone is enclosed as Exhibit 2. 1.7 We are registered under the provisions of Goods and Services Tax (GST) law in the state of Maharashtra vide GSTIN- 27AAGCB3353E1ZX (enclosed herewith as Exhibit 3). 1.8 Prior to the inception of GST in India, we were registered under the provisions of Service Tax Law vide Chapter V of the Finance Act 1994 and discharged Service Tax at 15%. A copy of our service tax registration certificate and copy of latest service tax return for the period April to June 2017 is enclosed herewith as Exhibit 4 and Exhibit 5 respectively. 1.9 Further, we were also registered under the provisions of Bombay Entertainment Duty Act, 1923 ( Bombay Entertainment Act ) and paid applicable entertainment tax on the activities undertaking in the gaming zone . 1.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law or Rules made thereunder. In this regard, the Company further contends that it is well established principle that the meaning of words has to be understood as understood in common parlance. Indication of the activities included in the entry is available from the inclusive part of description of the entry. 3.2.2 The Company wishes to rely on the definition of amusement park under Section 2(a-l) of the erstwhile Bombay Entertainment Act extracted below: (a-1) amusement park means a place wherein various types of amusements including games or rides or both (but excluding exhibition by cinematograph and video exhibition) are provided fairly on permanent basis, on payment for admission. 3.2.3 It is the contention of the Company that it is evident from the above that, amusement park includes the games and rides provided in premises. Further, the term game has been defined in the Explanation to Bombay Entertainment Act which includes games operated mechanically as well as electronically. The said explanation has been reproduced below: (ii) the expression game includes video games which are played with the aid of machine which is operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of public especially children and which promotes social wellness or recreation 3.5 The Company submits that it is apparent that the attempt made by Government is to bifurcate the activities or services which provides fun or recreation or learning for children etc. in clause (iii) which involves/requires maximum amount of physical participation 3.6 Games in gaming zone requires physical participation 3.6.1 The Company submits that it is evident from the inclusive part of the clause, the theme park, Water Park, go-karting or merry-go round, all such activities requires physical participation of the participant whereas in case of cinematic films, race clubs, sporting event etc., the person pays the cost of entry and enjoys the event as a spectator. The activities in clause (iiia) does not require a person to physically participate in cinematic films, race clubs, sporting event, it only enjoys the event as a spectator. 3.6.2 The Company also wishes to rely on the view expressed in the press release dated 22 January 2018 pursuant to the 25 GST Council meeting based on the recommendation of which the GST Notification 1/2018 was issued. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation of Amusement Parks and Industries (IAAPI) said high taxation will be detrimental to the existence of the industry. The government s policy with regard to amusement parks under the GST is not favorable and worldwide also the maximum tax levied on amusement park industry is 10 present, IAAPI Director Ajay Sarin told reporters here. The total average tax incidence at present comes to around 18 per cent pan-India, he added. The GST Council has fixed 28 percent for visits to theme parks and sporting events like IPL under the new indirect tax regime slated to be implemented from July 1. Sarin, who is also the Chairman of Hindustan Amusement Machines, said the new Taxation puts outdoor entertainment industry for children at par with casinos, betting and race courses. He further said earlier amusement parks were exempted from tax and it was only last year that a service tax of 15 per cent was levied, which was still way less than the current 28 percent. Proposing a tiered structure of taxation based on ticket prices, he said tickets for children must be kept at the lowest 5 percent bracket, while the most expensive ones must not be taxed at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Tax (Rate), New Delhi dated 25th January, 2018, whereby services by way of admission to amusement parks including theme parks, water parks, joy rides, merry-go-rounds, go-carting and ballet at S. No. 34(iii) of Original Notification No. 11/2017 - Central Tax (Rate), New Delhi dated 28th June 2017, were made chargeable at GST rate of (CGST 9% and SGST 9%). 1.2 However, the services of admission to amusement facility including the one provided by the Applicant in forms of offering gaming machine, were kept under a new S. No, namely 34(iii) which still remained chargeable at the rate of 28% (CGST 14% and SGST 14%). 3. There is a fundamental difference between amusement facilities at new S. NO. 34(iii) a and the amended S. NO. 34 (iii) of Notification No. 1 1/2017 - Central Taxi (Rate) because the amusement facilities and amusement parks are fundamentally different. As per Wikipedia: An amusement park is a park that features various attractions, such as rides and games, as well as other events for entertainment purposes. A theme park is a type of amusement park that bases its structures and attractions around a central theme, often ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... small covered/closed premises. (f) In view of the above, the subject amusement facility of the notice by deploying gaming machine cannot qualify as an amusement park. 5. The Hon ble Supreme Court in a recent judgment in case of COMMISSIONER OF CUSTOMS (IMPORT), MUMBAI VS, M/s. DILIP KUMAR AND COMPANY ORS., Civil Appeal No. 3327 of 2007 = 2018 (7) TMI 1826 - SUPREME COURT at para 52 held that; (1) Exemption notification should be interpreted strictly, the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. PRAYER Considering the facts discussed in forgoing paras, it is humbly prayed that the application considered and cannot be classified as services by way of admission to amusement parks including theme parks, water parks, joyriders, merry-go-rounds, go carting and ballet but as Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been spilt into 2 different entries, and the effective rate of tax has been reduced from 28% to 18% on certain services. Therefore applicant is seeking ruling from this authority as to the applicability of GST rate of services on the service activities of the company. Following is the question on which ruling is sought. Question: Applicable GST Rate on operating gaming zone in one of leading malls in Mumbai? We find from the submission of the applicant that they are engaged in providing amusment facility services and also running family entertainment facility center in Oberoi mall Mumbai. To conduct the business as aforesaid it has stationed various gaming equipment s and machine for different age groups consisting of kids, teenagers and adults. The equipment s and machines are either coin operated or card operated in its faculty. It is the submission of the applicant that they are covered under the ambit of amusement park and as such qualify for the reduced GST rate of 18%, against 28%, as per the amendment notification. For this proposition, applicant has relied on tax paid (Entertainment Tax) under the BET Act, common parlance test and the VAT rates app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices CGST Rate Condition (iii) Services by way of admission to amusement parks including theme parks, water parks, joy rides, merry-go rounds, go-carting and ballet. 9% - (iii)(a) Services by way of admission to entertainment events or access to amusement facilities including exhibition of cinematograph films, casino, race club, any sporting event such as Indian Premier League and the like. 14% - From the close scrutiny of notification entry, we have to decide whether the supply of services provided by the applicant fall within the expression Amusement Park and thus qualify for reduced rate of GST. The term Amusement Park has not been defined under the Act. We therefore refer to the definition as per the Bombay Entertainment Act which is reproduced below: Section 2 (a-1): of the Bombay Entertainment Act extracted below: (a-1) amusement park means a place wherein various types of amusements including games or rides or both (but excludin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is a place, building, equipment or an amenity for a particular purpose . It can be understood that, to be called a park, it must have a large area of land whereas to be called a facility , it is sufficient if it has a place or a building or an equipment used for a particular purpose. Thus we can have a medical facility for treatment, a cooking facility for cooking and an amusement facility having equipments for amusement. In the instant case the applicant has placed equipments in an area within the Oberoi mall. Therefore there is should not be a second thought to call it an amusement facility rather than an amusement park . Our view is also supported by the applicant s own admission to the effect that they are engaged in providing amusement facility services and running family entertainment center in Oberoi Mall. Applicant is also advertising its activities in the public domain as providing amusement facilities. From the above, we conclude that the subject services/activities supplied by applicant by deploying gaming machines and equipments would not fall within the expression, as an amusement park , but fall under r amusement facilities 05. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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