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TMI Blog2009 (1) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... vices provided by them. Their premises were searched wherein statement of their officers were recorded in which they stated that they were letting out banquet halls and conference halls for business meetings, training and conference but no separate charges were recovered in respect of banquet halls and conference halls as the charges were included in the room rent. They have fixed yearly business contracts with their customers under package deals in which the package charges was dependent upon the services availed i.e. breakfast, lunch etc. all of which were included in the room rent. They stated that they were paying service tax in respect of banquet halls let out for marriage functions but since banquet halls given for business meetings w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailure to pay service tax. The show cause notice therefore required them to show cause why penalties should not be imposed under Sections 76, 77 and 78 of the Finance Act, 1994. This show cause notice was adjudicated by Commissioner who held that penalties were imposable and imposed penalty of Rs.100/-per day subject to maximum of Rs.1,03,856/-under Section 76, penalty of Rs.2,07,712/-under Section 78 and penalty of Rs.5,000/-under Section 77 of the Act. 3. Ld. Advocate for the appellant submitted that show cause notice issued by Commissioner itself is improper as it cannot go beyond the facts narrated in the original show cause notice in exercise of its revisional power. He instead of acting as Revision authority, has acted as original au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of the revision powers cannot demand the payment of service tax with interest. 4. It was submitted that they have through out stated that they were unaware that such business meetings and training programmes which inter alia include use of banquet halls for which no separate charges are recovered also form part of convention services and it was on account of lack of knowledge and trained staff that the service tax was not paid out of ignorance. Commissioner in his order has nowhere brought out the facts on the basis of which he has arrived at a finding that service tax was not paid by suppressing facts with intent to evade duty. He referred to the decision of Tribunal in the case of Ram Krishna Travels Pvt. Ltd. - 2007 (6) STR 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a case of voluntary payment but service tax was paid after detection by the departmental officers by carrying out a search in the appellant's premises and therefore it is to be considered as a case of suppression of facts with intent to evade duty and the penalties have been rightly imposed. 6. I have considered the submissions. 7. I am in agreement with the plea taken by the appellant that the original show cause notice nowhere brings out the facts on the basis of which it has been concluded that the activity of providing convention services was suppressed by the appellant with intention to evade duty. These words are totally missing and not to be found in the original show cause notice. Therefore the show cause notice issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellants cannot be outrightly rejected unless some circumstance is shown to establish that the appellant was in the knowledge that service tax is payable on such activity. When no separate charges for banquet halls are recovered there can be bona fide doubt whether service tax is payable in such situation. I further notice that Commissioner has acted as adjudicating authority and not as a Revision authority as he has issued an order-in-original and not order-in-revision and the whole tenure of the order is determining of the issue afresh rather than revising the order. 8. In view of above, I hold that the Commissioner's order is not tenable and accordingly set aside the same and restore order-in-original. (Pronounced in Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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