Custom, Excise & Service Tax Tribunal
M/S. Narmada Jackson Hotel vs C.C.E., Bhopal on 4 February, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 04.02.2016
For Approval & Signature :
Honble Honble Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Appeal No. ST/1002/2009-CU[DB]
[Arising out of Orders-in-Revision No.01/Comm/ST/PFV/2009, dated 15.09.2009 passed by the C.C.E.(Appeals), Bhopal]
M/s. Narmada Jackson Hotel Appellant
Vs.
C.C.E., Bhopal Respondent
Appearance Dr. Hemant S. Modh, Advocate - for the appellant Mr. M.R. Sharma, DR - for the respondent CORAM: Honble Justice G. Raghuram, President Honble Mr. R.K. Singh, Member (Technical) Final Order No.50239/2016, dated 04.02.2016 Per Mr. R.K. Singh :
Appeal is filed against Order-in-Revision dated 15.09.2009 in terms of which service tax demand of Rs.2,94,502/- was confirmed along with interest, and penalty under Section 76 of the Finance Act, 1994 was also imposed.
2. The facts of the case are as under:-
The appellant was issued a Show Cause Notice dated 18.09.2006 demanding service tax of Rs.2,94,502/- under Mandap Keeper service. The primary adjudicating authority dropped the demand on the ground that the appellant was entitled to the benefit of Notification No. 12/2003-ST, dated 20.06.2003 and thereby catering charges were not included in the assessable value
3. The Commissioner reviewed the said order and after issue of notice to the appellant held that the catering charges (cost of buffet dinners) was not entirely excludable from the assessable value and therefore the appellant was eligible only for the benefit of abatement of 40% as per Notification No.12/2001ST, dated 20.12.2001 as amended by notification No.8/2004ST dated 09.07.2004. Thus holding the commissioner passed the impugned order.
4. The appellant has contended that in its bills it had separately shown the hall rent and the charges for buffet dinners and has already paid service tax under Mandap Keeper service on the hall rent and was entitled to the benefit of Notification No.12/2003-ST as far as the charges for buffet dinners were concerned. It cited the judgement of CESTAT in the case of Sky Gourmet (P) Ltd. Vs. CST [2009 (14) STR 777 (Tri.-Bang)] in its support.
5. Ld. Departmental Representative supported the impugned order.
6. We have considered the contentions of both sides. The definitions of Mandap and Mandap keeper given in section 65 (66) and 65 (67) ibid are reproduced below (66) "Mandap" means any immovable property as defined in section 3 of the Transfer of Property Act, 1882 (4 of 1882) and includes any furniture, fixtures, light fittings and floor coverings therein let out for consideration for organizing any official, social or business function; 1[Explanation.For the purposes of this clause, social function includes marriage;] (67) "Mandap keeper" means a person who allows temporary occupation of a Mandap for consideration for organizing any official, social or business function; 2[Explanation.For the purposes of this clause, social function includes marriage;] The taxable service is defined under section 65 (105) (m) ibid which is also reproduced below for convenience:-
taxable service means any service provided or to be provided to any person, by a mandap keeper in relation to the use of mandap in any manner including the facilities provided or to be provided to such person in relation to such use and also the services, if any, provided or to be provided as a caterer and the term service provider shall be construed accordingly.
It is not in dispute that the appellant is a manap keeper and provided service in relation to use of mandap. The taxable service defined under section 65 (105) (m) ibid clearly states that it includes the facilities provided or to be provided to the client in relation to such use and also the services if any provided or to be provided as a caterer. Thus, the catering provided by the appellant along with the service of use of mandap is clearly covered under the scope of the taxable service. It is worth noting that the buffet dinner charges which the appellant sought to exclude from the taxable value did not represent merely the cost of food the deduction of which it could perhaps legitimately claim under the provisions of Notification No.12/2003ST. The charges for buffet dinner included not only the cost of food but also the related services like crockery and cutlery, table service, etc. Therefore, the appellants claim that the entire charges relating to buffet dinner should be excluded from the assessing value in terms of notification No.12/2003ST is clearly not sustainable. However, it is also a fact that when the cost of food is included in the overall charges recovered by the appellant which included hall rent and buffet dinner charges it is entitled to the benefit of Notification No.12/2001ST as amended by Notification No.8/2004ST and the Commissioner has extended the said benefits and allowed abatement of 40% on the gross value charged by the appellant. The judgement in the case of Sky Gourmet (P) Ltd. Vs. CST (supra) cited by the appellant states that in the outdoor catering service the food supplied should be treated as sale of goods and therefore the same cannot be charged to the service tax. In the present case, the service involved is not outdoor catering service. Also the appellant was seeking deduction of the entire amount of buffet charges from the assessable value under Notification No.12/2003ST instead of seeking deduction of only the cost of food supplied. Thus the said judgement of CESTAT does not come to the rescue of the appellant.
6. In the light of the foregoing analysis, we do not find any infirmity in the impugned order. The appeal dismissed.
(Justice G. Raghuram) President (R.K. Singh) Member (Technical) SSK -3-