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TMI Blog2013 (6) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under the category of 'Mandap Keeper Service'. While rendering 'Mandap Keeper Services' they were also providing catering services. However, they split the charges for the services rendered into two parts. One is for 'hall charges' which is towards temporary usage of the banquet hall for conducting the functions and the other is for supply of food. They have discharged service tax liability o the 'hall charges' collected from the customers. However, they have not paid service tax on the food charges collected from the customers. It is their contention that, as regards the food, transaction is one of sale of food and therefore, service tax is not leviable. They have also claimed that food is exempt from sales tax. Two show cause notices w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are liable to pay service only on the amount received in respect of hall charges. The consultant further submits that the entire transaction was known to the department and, therefore, invocation of extended period of time to confirm the demand is not sustainable. Accordingly, he pleads for grant of stay against the impugned demands. 4. The learned Additional Commissioner (AR) appearing for the Revenue strongly refutes the contention of the appellant and submits that the issue involved herein is covered by the decision of the hon'ble Supreme Court in the case of Tamil Nadu Kalyana Mandapam Assn. vs. Union of India 2004 (167) ELT 3 (SC) wherein it was held that service tax on catering services does not amount to tax on sale and purchase of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994, the taxable service relating to 'Mandap Keeper' is defined as follows: "(41) (p) 'Taxable Service' means any service provided to a client, by a mandap-keeper in relation to the use of a mandap in any manner including the facilities provided to the client in relatin to such use and also the services, if any, rendered as a caterer." As per Section 65(10) caterer means: '''caterer' means any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose of occasion" 6.2 These two clauses were considered extensively and discussed by the hon'ble apex Court in the case of Tamil Nadu Kaly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his experience has the wherewithal to provide. A customer goes to a mandap-keeper, say a star hotel, not merely for the food that they will provide but for the entire variety of services provided therein which result in providing the function to be solemnized with the required effect and ambience. Similarly the services rendered by out door caterers is clearly distinguishable from the service rendered in a restaurant or hotel inasmuch as, in the case of outdoor catering service the food/ eatables / drinks are the choice of the person who partakes the services. He is free to choose the kind, quantum and manner in which the food is to be served. But in the case of restaurant, the customer's choice of foods is limited to the menu card. Agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident from the fact that the transaction between a mandap-keeper and his customer is definitely not in the nature of a sale of hire purchase of goods. It is essentially that of providing a service. In fact, as pointed out earlier, the manner of service provided assumes predominance over the providing of food in such situations which is a definite indicator of the supremacy of the service aspect. The legislature in its wisdom noticed the said supremacy and identified the same as a potential region to collect indirect taxes. Moreover, it has been a well established judicial principle that so long as the legislation is in substance, on a matter assigned to a legislature enacting that statute, it must be held valid in its entirety even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hon'ble apex Court in the case of Tamil Nadu Kalyana Mandapam Assn. (supra), service tax liability is attracted in case the mandap keeper also performs catering services. Therefore, we are of the considered view that the appellant has not made out a case for 100% waiver of pre-deposit of the dues adjudged against him. As regards time bar aspect, this issue is both a question of fact and law and, therefore, can be gone into at the time of final hearing of the appeal. 6.4 The demand for the normal period in this case is approximately Rs. 53 lakhs. Accordingly, we direct the appellant to make a pre-deposit of Rs. 53 lakhs within a period of eight weeks and report compliance on 22 nd April, 2013. On such compliance, the balance of dues adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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