2020 (2) TMI 905 - HC - Central Excise

Application for withdrawal of application - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - appellant submitted that under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, the duty imposed upon the appellant could be compounded - HELD THAT - The present appeal is dismissed as withdrawn with liberty as prayed for. It shall be open for the appellant to file an appropriate application before the competent authority under the aforesaid scheme for compounding the tax imposed, which shall be considered and decided in accordance with law by passing a reasoned and speaking order.

Issues involved:
1. Appeal seeking withdrawal
2. Substantial questions of law raised by the appellant
3. Benefit of exemption under Notification No. 12/03-ST
4. Treatment of supplies of food and beverages by a Mandap Keeper
5. Application of pre-dominant nature test
6. Evidence of sale of food and beverages
7. Charging service tax on the gross amount
8. Validity of judgment in Sky Gourmet Pvt Ltd case
9. Ignoring binding precedent in Sky Gourmet Pvt Ltd & Daspalla Hotels Ltd case
10. Demand of interest
11. Imposition of penalty under Section 76
12. Disposal of appeals without deciding due to pending appeal
13. Disposal of appeals without considering relevant provisions

Analysis:
1. The appellant sought withdrawal of the appeal under the Sabka Vishwas Scheme, indicating an intention to approach the competent authority for compounding the imposed duty. The court allowed the withdrawal application, dismissing the appeal with liberty to file for compounding under the scheme, with the option to revive the appeal if necessary post the authority's decision.

2. The appellant raised substantial questions of law challenging the order passed by the Customs, Excise & Service Tax Appellate Tribunal. Issues included the correctness of the Tribunal's decision on exemption under Notification No. 12/03-ST, treatment of supplies by a Mandap Keeper, application of pre-dominant nature test, evidence of sale of food and beverages, and charging service tax on the gross amount.

3. The Tribunal's decision on the appellant's entitlement to claim exemption under Notification No. 12/03-ST was contested, particularly regarding the treatment of separate invoices for food, beverages, and services provided by the Mandap Keeper. The Tribunal's interpretation of sale within the meaning of relevant laws was a key point of contention.

4. The application of the pre-dominant nature test by the Tribunal was challenged, with arguments against the Tribunal's characterization of the transaction as primarily a service provision rather than a composite transaction involving both sale and service, as contended by the appellant.

5. The Tribunal's assessment of evidence regarding the sale of food and beverages, including the possession transfer for a price, was disputed by the appellant, highlighting the lack of evidence supporting the Tribunal's conclusion.

6. The Tribunal's decision to charge service tax on the gross amount, disregarding the mutual exclusivity of service tax and sales tax, was a subject of disagreement, indicating a potential misapplication of tax principles.

7. Issues related to the validity of a judgment in the Sky Gourmet Pvt Ltd case, and the Tribunal's alleged ignorance of binding precedents in the Sky Gourmet Pvt Ltd & Daspalla Hotels Ltd case, were raised, questioning the Tribunal's adherence to established legal principles.

8. The demand for interest and imposition of a penalty under Section 76 on the appellant were contested, challenging the correctness of these decisions by the Tribunal.

9. Lastly, concerns were raised regarding the Tribunal's disposal of appeals without deciding, citing pending appeals and failure to consider relevant provisions, indicating potential procedural irregularities in the Tribunal's approach.

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