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TMI Blog2008 (12) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... . While the Original Adjudicating Authority dropped further proceedings, the Commissioner exercising revision powers under Section 84 of Finance Act, 1994 confirmed a demand of Rs. 2,09,723/- being short payment of service tax for the period from 16-7-2001 to 27-6-2003 for the service provided under the category of convention services and Rs. 28,544/- being the short levy during the period from April, 1999 to June, 2003 for availing wrong exemption under Mandap Keeper service by not fulfilling the condition prescribed under exemption Notification. He also imposed penalties under Section 75, 76, 77 and 78 of Finance Act, 1994 and also demanded interest. 2. Heard both the sides. The ld. Advocate on behalf of the appellants submitted that in view of the clarification issued by CBEC vide letter F. No. B-II/1/2000-TRU, dated 9-7-2001 which was relied upon by the Dy. Commissioner, if a service provider is already registered as a Mandap Keeper and paying service tax, he is not liable to pay service tax again under the category of convention services and vice versa. In view of the above clarification she submits that since they were paying service tax as Mandap Keeper regularly, they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of convention services, while assessee was not required to pay service tax twice if the classification could not be clearly made, where the classification could be made the service tax was to be discharged under the appropriate category of service. In any case assessee had no liberty to treat all the services provided as Mandap Keeper service. Unfortunately we find that the Dy. Commissioner did not take the subsequent circular issued by the Board into account at all, whereas Commissioner has taken note of the circular of the Board issued vide No.S.T.-51/13/2002 dated 7-1-2003 issued under F. No.178/1/2002/CX.4, which prescribed that; (i) Before levying service tax, it is essential to determine under which category a particular service falls. (ii) One service provider may provide more than one taxable service. In such cases, service provider need only taken one registration, but it shall be endorsed for all the taxable services and tax liability will have to be discharged for each of the taxable service separately. (iii) The guiding principle should be that a service should be categorized under the category, which is more specific. As for example, a hotel may rent out a confere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfying meal. He also has observed the noticee's contention that the breakfast is laid out on daily basis including nearly 20 different food items and several beverages, that there is no restriction on the quantity of food a person could have as breakfast and such breakfast is a substantial meal of any reasonable standard, and the high tea is a British term that refers to substantial early evening meal that is often considered to be the main meal of the day is not correct. This is in view of the fact that the present issue is of providing breakfast or high tea is with relation to providing Mandap Keeper service in banquet halls. He also observes that breakfast or tea are provided as per the fixed requirement and menu of the clients and it is not unlimited or without restriction on the quantity of the food a person could have as breakfast as in the case of daily breakfast laid out by the noticee in their hotel. On this basis he comes to the conclusion that the appellants do not satisfy the conditions. On the one hand appellants claim that they provide either breakfast or high tea wherever exemption has been claimed. On the other hand the Commissioner's findings are that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Therefore, the matter has to go back to the Original Adjudicating Authority to arrive at quantum of duty on the convention service payable which is within the time limit without invocation of extended period. In view of the fact that the Department also recognizes that there is only a subtle distinction between the two services, we feel that in the interest of justice appellants should get another opportunity to classify the services provided by them on different days under Mandap Keeper or convention service if they desire to do so. Therefore, the Original Adjudicating Authority should provide the details of services on which differential service tax is proposed to be demanded and give an opportunity to the appellants to classify them once again and pass an order if there is a dispute regarding classification of the service provided on specific days. 8. To sum up, appeal is decided as under: (1) The demand is limited to the period of limitation without invoking extended period in respect of both the services. (2) Appellants have to be given an opportunity to re-classify the service within the limitation period if they desire to do so. (3) As regards exemption claimed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 12/2001 dt. 20-01-01 availed by the noticee is wrong and service tax amounting to Rs. 28,544.35 as per Annexure B to the SCN is recoverable from the assessee." 10. As is clear, the said notification provides exemption from payment of service tax by a mandap keeper, in excess of the service tax calculated on 60% of the gross amount for the facilities provided to the client for catering charges. Such explanation attached to the notification refers to the expression 'substantial and satisfying meals'. The said expression 'substantial and satisfying meals' does not stand defined anywhere. What has to be substantial and satisfying would thus vary from person to person. Commissioner has recorded that high tea cannot be considered as 'substantial and satisfying meal'. Apart from the fact that the said interpretation is based upon the adjudicating authority's own opinion, I find that high tea is a concept associated with the early evening meal, as contended by the appellant. It is not providing of simple tea or coffee, but the adjective 'high' is used, when the same indicates that high tea is in the social context, replacement of dinner. Each ..... 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