9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (4) TMI 243 - AT - Service TaxMandap Keeper service - demand of service tax - Held that - The appellants are not taxable as a Mandap Keeper in respect of corporate booking of rooms where conference hall is provided as a complimentary. However, wherever the appellants have only let out the said banquet/ conference halls for use and charge for the same, appropriate Service Tax is payable - Demand of Service Tax on Mandap Keeper shall be restricted to the cases where the banquet halls/conference rooms have been allowed to be used per se. Beauty treatment and health fitness service - Hair cutting services - demand of service tax - Held that - The main dispute between the Department and the appellants is about providing the bifurcation and documentary evidence thereof. We find that wherever the appellants have provided the services of therapeutic massage , the same shall not be liable for Service Tax and wherever, massage per se is provided Service Tax shall be paid. Similarly, it was contended by the Department that the appellants have not produced any documentary evidence that they were doing only hair cutting/dying during the period 01.08.2002 to 16.06.2005 - Service Tax in respect of Beauty Treatment and Health and Fitness Centre shall be re-computed after allowing cum-duty benefit. Club or association Service - Membership fee - demand of service tax - Held that - It was held in number of cases that in view of the mutuality of interest and looking into the fact that the members of the club are providing services to themselves; no Service Tax is leviable on the same - demand set aside. Dry cleaning services - internet caf - demand of service tax - Held that - The appellants claim that a small portion was for internet services and most of the receipts were for usage of ISD/STD telephone. We find that necessary bifurcation may be submitted to the authorities for computation of applicable duty. Similarly, the appellants may produce proof regarding their claim that they have not provided dry clean service to their customers. Wherever they have provided such services to the customers, the same shall be chargeable to Service Tax. For this reason, we find that the case needs to be remanded back to the original authority for appreciation of evidence given by the appellants and to compute the Service Tax liability - Service Tax in respect of Dry Cleaning and Internet Caf shall be re-computed after allowing cum-duty benefit. Business Auxiliary Service - demand of service tax - It is not the appellant s case that they are receiving a fixed rent. They are getting a percentage of sales as the remuneration. They have allowed their premises to be utilized for the display and also providing sales personnel and packing materials and are offering facilities for branding of the products in a place outside the shop. This certainly amounts to promotion of business therefore charging of Service Tax under the BAS category is tenable - demand upheld. Extended period of limitation - Held that - Mere submission of Returns regularly is not enough for the Department to know the activities of the appellant. The appellant being well aware of the provisions of Service Tax have not declared relevant details to the Department - extended period is invokable and penalties are imposable - however, during the relevant periods both under Section 76 and Section 78 cannot be imposed. Appeal allowed in part and part matter on remand.
Issues Involved:
1. Service Tax on Mandap Keeper 2. Service Tax on Beauty Treatment & Health and Fitness Centre 3. Service Tax on Dry Cleaning 4. Service Tax on Internet Café 5. Service Tax on Business Auxiliary Service 6. Service Tax on Club/Association 7. Penalties and Invocation of Extended Period Issue-wise Detailed Analysis: 1. Service Tax on Mandap Keeper: The appellants argued that they provided short-term accommodation involving room and food packages, with complimentary conference hall use, not subject to Service Tax. They cited several judgments supporting their stance. The Tribunal agreed, stating that charges for room rent and food do not attract Service Tax as a Mandap Keeper. However, when banquet/conference halls were rented out separately, Service Tax is applicable. 2. Service Tax on Beauty Treatment & Health and Fitness Centre: The appellants claimed therapeutic massages, excluded from Service Tax as per Section 65 (51) and CBEC Circular, were provided under medical supervision. They also argued hair cutting services were non-taxable until 16.06.2005. The Tribunal found that therapeutic massages are exempt from Service Tax, but non-therapeutic services are taxable. The case was remanded for verification of evidence. 3. Service Tax on Dry Cleaning: The appellants contended that only one dry cleaning machine was used for internal purposes, and no guest clothes were dry cleaned. The Tribunal remanded the case, requiring the appellants to provide proof that dry cleaning services were not offered to customers. 4. Service Tax on Internet Café: The appellants stated that most income was from STD/ISD calls, with minimal revenue from internet services, which became taxable from 01.05.2006. The Tribunal directed the appellants to submit bifurcation details for proper duty computation. 5. Service Tax on Business Auxiliary Service: The appellants received a commission from M/s Himalaya Drug Company for allowing product displays, which they argued was rent. The Tribunal disagreed, noting the commission based on sales indicated business promotion, making it taxable under Business Auxiliary Service. 6. Service Tax on Club/Association: The appellants argued services to members were non-taxable, citing mutuality of interest. The Tribunal agreed, referencing several judgments, and set aside the demand for Service Tax on club/association services. 7. Penalties and Invocation of Extended Period: The appellants claimed regular filing of Returns and no suppression of facts. The Tribunal found incomplete service declarations justified the extended period and penalties. However, penalties under both Sections 76 and 78 cannot be imposed simultaneously. Penalty under Section 76 was set aside, while penalties under Sections 77 and 78 were upheld. Conclusion: - Demand of Service Tax on Club/Association is set aside. - Service Tax on Mandap Keeper is limited to separate banquet/conference hall rentals. - Service Tax on Business Auxiliary Service is upheld. - Service Tax on Beauty Treatment, Health and Fitness Centre, Dry Cleaning, and Internet Café to be re-computed with cum-duty benefit. - Penalty under Section 78 is imposed, Section 76 penalty is set aside, and Section 77 penalty is upheld. (Order pronounced in Open Court on 02/04/2019)
|
