TMI Blog2020 (11) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... t receipts under this head are in the nature of receipt towards entertainment provided and the same is taxable under the State Entertainment Tax Act and hence not exigible to service tax. Parking receipts - HELD THAT:- The appellant had paid the admitted tax of ₹ 22,17,764/- against the demand of ₹ 12,62,642/-. Hence, we hold that the service tax demanded vide the impugned order is not disputed, is taxable and paid. Further, admitted tax is more than the assessed tax. CENVAT Credit - Rule 6(3) of CCR - HELD THAT:- Appellant have maintained separate account of input services and there is no utilisation of common input services towards providing of exempt services - Further it is found that although the appellant had prayed for verification of their records to verify the correctness of their claim, but no such opportunity was provided and by adopting a pedantic approach the demand was confirmed - Hence, this demand is set aside and the matter remanded without expressing any opinion on merits leaving the issue open to the adjudicating authority after following the principles of natural justice. Penalty - HELD THAT:- The issue being wholly interpretational an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o March 2012 3,66,26,005/- (Appeal allowed by Tribunal F.O. dated 18.3.2019) 2 O.R. No.99/2014-Adjn (ST) (Commr.) dated 25.05.2014 of ST Commissionerate assigned O.R. No. 198/2015 Adjn.(ST) Comm (Hyd.II Comm.) April 2012 to March 2013 4,23,16,193/- 3 O.R. No.54/2015-Adjn (ST) (Commr.) dated 20.04.2015 of ST Commissionerate assigned O.R. No. 199/2015 Adjn.(ST) Comm (Hyd.II Comm.) April 2013 to March 2014 3,39,53,434/- Present show cause notice is dated 22.04.2016. 4. The source of income of the appellant are from:- i) Screening of films known as share from box office; ii) Sale of food and beverage (pure sales transaction); iii) Share of Revenue from Food Court and other outlets; iv) Rent; v) Fun factory (entertainment activities run by self); vi) Parking fee (w.e.f. 01.04.2013); vii) Sale of time and space for advertisement; 5. The demand raised vide impugned order is as follows:- S. No. Name of the activity Value as per the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that in the agreement of the appellant with M/s Hotel Kamal and M/s Harsha Hospitality Pvt. Limited it was agreed between them that they received the amount as share of Revenue generated. Thus, there is no provision of any service to any person, as the relationship between the parties is on principal to principal basis. Further, there is no service provider or service recipient relationship and the turnover in question is sale of goods. The Tribunal placed reliance on the precedent ruling of this Tribunal in the case of Ambience Hospitality Pvt. Limited vs. Commissioner of C. Ex. Delhi-IV -2019 (21) GSTL 400 (Tri. Del.). 7. Learned counsel further urges that the next dispute relates to demand of ₹ 87,67,255/- under Rule 6(3)(i) is on the allegation of irregular availment of cenvat credit on common input services which are used for both taxable and exempt services. It is urged that no common input services were used by them for exempted and taxable services. It is contended that the appellant have maintained separate account for the input services used for exempted service and taxable service. No cenvat credit was availed in respect of service tax paid on input servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed reliance on Board Circular No. 148/17/2011-ST dated 13.12.2011 wherein para 9 and 10, it is provided as follows:- 9. Thus, where the distributor or sub-distributor or area distributor enters into an arrangement with the exhibitor or theatre owner, with the understanding to share revenue / profits and not provide the service on principal-to-principal basis, a new entity emerges, distinct from its constituents. As the new entity acquires the character of a person , the transactions between it and the other independent entities namely the distributor/sub-distributor/ area distributor and the exhibitor etc. will be a taxable service. Whereas, in cases the character of a person is not acquired in the business transaction and the transaction is as on principal-to-principal basis, the tax is leviable on either of the constituent members based on the nature of the transaction and as per rules of classification of service as embodied under Sec. 65A of Finance Act, 1994. 10. To sum-up the above, the arrangements entered into by the distributor or sub-distributor or area distributor etc. and the exhibitor or theatre owner etc. in exhibiting the film produced by the producer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry is concerned, this issue is already adjudicated in favour of the appellant in the precedent decision of this Tribunal dated 01.01.2019 wherein the Tribunal held that receipts under this head are in the nature of receipt towards entertainment provided and the same is taxable under the State Entertainment Tax Act and hence not exigible to service tax. 13.3 So far the issue of parking receipts is concerned, it is demonstrated that the appellant had paid the admitted tax of ₹ 22,17,764/- against the demand of ₹ 12,62,642/-. Hence, we hold that the service tax demanded vide the impugned order is not disputed, is taxable and paid. Further, admitted tax is more than the assessed tax. 13.4 So far the demand of ₹ 87,67,255/- under Rule 6(3) is concerned, we take notice of the pleading of the appellant, which is recorded in para 6 of the impugned order, that they made a categorical averment that they have maintained separate account of input services and there is no utilisation of common input services towards providing of exempt services. We further find that although the appellant had prayed for verification of their records to verify the correctness of their cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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