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TMI Blog2025 (4) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... dhi Nagar Club, Andhra Social and Cultural Association etc. and had received rental income and amenities charges from M/s. Taramani Hotels (P) Ltd. and have not discharged service tax on the same. Two notices came to be issued to the appellant. SCN No 5/2017 dated 12.01.2017 and Statement of Demand 9/2018 dated 05.04.2018. After due process of law, the Ld. Adjudicating Authority confirmed the demand made in the Notices. The appellant preferred appeals before the Ld. Commissioner (Appeals). The Ld. Appellate Authority vide the impugned orders upheld the adjudication orders except for setting aside the penalties imposed under sec. 77 of the Act as per OIO dated 30.10.2017. Hence the appellant is before this forum. 3. Shri Hari Radhakrishnan, Ld. counsel appeared for the appellant and Smt. O.M. Reena, Ld. Authorized Representative appeared for the respondent. 3.1 The Ld. Counsel for the appellant submitted the following; (A) No service tax liability for the period 2011-12 and 2012-13 - The taxable services rendered by the Appellant during the period 2011-12 and 2012-13 was only with respect to renting of immovable property, which turnover is less than the threshold limit in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the Hon'ble Apex Court by dismissing Civil Appeal filed by the Revenue, held that the value received for the taxable purpose needs to be considered as cum-tax amount if the Service tax is not charged as per the Section 67(2) of the Finance Act. The Ld. Advocate prayed that the Tribunal may be pleased to set aside the impugned Order's-in-Appeal and thus render justice. 3.2 The Ld. AR has taken us through the impugned orders and reiterated the points stated therein. 4. We have heard the rival parties and perused the Appeal Memorandum, connected documents and judgments provided by both the parties. We shall take up the issues sequentially. 5. The issue raised at (A) above is one of fact. We do not find any reason as to why the threshold limit in terms of Notification No. 6/2005-ST dated 01.03.2005, as amended was not calculated while determining the demand. The matter hence merits being remanded for determination afresh. 6. The issue at (B) relating to renting of immovable property could not be examined due to the non-availability of the terms of the contract / agreement entered into by the appellant with Tamarai Hotels (P) Ltd. A contract is in the domain of private la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person for another for consideration and includes a declared service; (ii) As per Section 66E(i) of the Act, the following shall constitute declared services namely:- (i) service portion in an activity wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity (iii) As per Section 65B(41) of the Act "renting" means allowing, permitting or granting access, entry, occupation, use or any such facility, wholly or partly, in an immovable property, with or without the transfer of possession or control of the said immovable property and includes letting, leasing, licensing or other similar arrangements in respect of immovable property; 6.11 Thus from the above, the assessee's activity of catering to various clients for consideration, serving food and beverages in an air-conditioned restaurant and receipt of rental income constitutes service under Section 65B(44) of the Act and is not covered under any of the exclusions therein. Further the services are not exempted under any of the exemption Notifications issued under the provisions of the Act and are declared services under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rriding nature of the exemption afforded under Section 26 of the Special Economic Zones Act, 2005. We find that the SEZ Act clearly indicates the persons who are entitled to the benefit of exemptions; the duties from which exemption is granted and the operations or activities in respect of which exemption is available. Section 7 of the SEZ Act exempts any goods or services exported out of, or imported into, or procured from the Domestic Tariff Area from taxes, duties or cess, "subject to such terms, conditions and limitations, as may be prescribed". Section 2(w) of the SEZ Act states that 'prescribed' means prescribed by rules made by the Central Government under this Act. Rule 9 of the SEZ Rules provides for the grant of approval for authorized operations. As per Rule 10 the goods and services required for the authorized operations may be approved by the Board. Hence unauthorized operations performed within the SEZ area are liable to duty. In the case of Competent Authority Vs. Barangore Jute Factory reported in (2005) 13 SCC 477, it has been held by the Hon'ble Apex Court that where statute requires an act to be done in a particular manner, the act has to be done in that mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards in the restaurant, but did not deposit the same to the Government exchequer proves their intention to suppress facts from the department. Further, they had filed returns only for the year 2013 - 14, but did not file returns for the subsequent year 2014 - 15. The act of not paying the service tax / non-deposit of service tax collected from the service receivers to the Government exchequer and non-filing of periodical returns, proves the assessee's intention to suppress the fact of rendering outdoor catering service, renting of immovable property service and restaurant services from the knowledge of the department. The assessee has also wrongly availed exemptions on services provided to units in SEZ without following the prescribed mandatory requirements under law. The fact would not have come to light, but for the investigation carried out. It appears from the above act of the assessee, that they had deliberately resorted to suppression of all material facts / information from the knowledge of the department with intent to evade payment of service tax." We hence find that the OIO has alluded to evidence showing enrichment by the appellant based on public money collected as tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(2021) SCC OnLine SC 672], held as under; 36. The judgment replicates the individuality of the judge and therefore it is indispensable that it should be written with care and caution. The reasoning in the judgment should be intelligible and logical. Clarity and precision should be the goal. All conclusions should be supported by reasons duly recorded. The findings and directions should be precise and specific. Writing judgments is an art, though it involves skillful application of law and logic. We are conscious of the fact that the judges may be overburdened with the pending cases and the arrears, but at the same time, quality can never be sacrificed for quantity. Unless judgment is not in a precise manner, it would not have a sweeping impact. There are some judgments that eventually get overruled because of lack of clarity. Therefore, whenever a judgment is written, it should have clarity on facts; on submissions made on behalf of the rival parties; discussion on law points and thereafter reasoning and thereafter the ultimate conclusion and the findings and thereafter the operative portion of the order. There must be a clarity on the final relief granted. A party to the litig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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