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TMI Blog2014 (4) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... ges in the consideration received nor did they declare the receipt of consideration in the ST-3 returns. Thus, there is a willful mis-statement of facts with an intent to evade tax on the part of the appellant. Therefore, the extended period of time has been rightly invoked to confirm the Service Tax demand and we hold accordingly. As regards the penalty imposed under Section 78, the penalty under the said Section would apply only when there is a suppression of facts or willful mis-statement of fact with an intent to evade Service Tax on the part of the assessee. In the present case, from the records, it is clearly seen that prior to 1.4.2005, the appellant was discharging Service Tax correctly in accordance with law by paying Service Tax on the entire consideration received for both catering charges as also banquet hall charges w.e.f. 1.4.2005, the assessee deliberately split up the charges by issuing the separate bills by splitting into catering charges and banquet hall charges. This conduct of the assessee clearly reveals the intention to evade payment of Service Tax on the charges collected as catering charges. Therefore, penalty under Section 78 is clearly imposable. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice and in respect of the second show cause notice under Sections 76 and 77. Hence the appellant is before us. 3. The learned consultant for the appellant submits that they charge for the catering done separately by way of food charges on which they are discharging VAT liability and sale of food is not rendering of any service and, therefore, the said activity does not attract service tax liability. He relies on the decision of this Tribunal in the case of Daspalla Hotels Ltd. vs. Commissioner of Central Excise, Visakhapatnam 2010 (18) STR 75 and the decision of the hon'ble High Court of Karnataka in the case of Sky Gourmet Catering Pvt. Ltd. (2011) 46 VST 35 (Kar) in support of the above contention. He further submits that in respect of another unit of the appellant vide order dated 30.03.2010, the Jt. Commissioner of Central Excise had accepted this contention and held that they were liable to pay service tax only on the amount received in respect of hall charges. The consultant further submits that the entire transaction was, thus, known to the department and, therefore, invocation of extended period of time to confirm the demand is not sustainable. 3.1 The learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l issue was considered by this Tribunal and it was held that in the case of Mandap Keeper Services, catering service is incidental and ancillary to the Mandap Keeper services and, therefore, the charges for catering services would be includable in the taxable value of Mandap keeper Services subject to the grant of abatement prescribed in this regard. With regard to the contention of time-bar raised by the consultant for the appellant, he submits that the show cause notice dated 22/07/2011 is for the normal period only and with respect to show cause notice dated 15/11/2010, the demand for October 2009 to March, 2010 would fall within the normal period. 4.1 The learned Addl. Commissioner (AR) further submits that as regards the claim of the appellant for abatement during the period 2005-06 to 2007-08, during these years the appellant had availed CENVAT Credit on input services and as per Notification No. 1/2005-ST and No. 1/2006-ST, the abatement can be allowed only if no CENVAT Credit is availed. Since the appellant had availed CENVAT Credit, abatement has been rightly denied and the demands confirmed. 4.2 The learned AR also submits that as regards the appellant's content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quality of the services required keeping in view of the requirement of the customer. The nature of the event to be solemnized etc. In fact the logistics of setting up, selection and maintenance is the responsibility of the mandap keeper. The services of the mandap-keeper cannot possibly be termed as a hire purchase agreement of a right to use goods or property. The services provided by a mandap-keeper are professional services which he alone by virtue 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 outdoor 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commerce). Article 246(1) of the Constitution specifies that the Parliament has exclusive powers to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution. As per Articles 246(3), the State Government has exclusive powers to make laws with respect to matters enumerated in List II (State List). In respect of matters enumerated in List III (Concurrent List) both Parliament and State Government have powers to make laws. The service tax is made by Parliament under the above residuary powers . 5.3 From the above decision of the hon'ble apex Court, it is clear that the services rendered by the mandap keepers as a caterer would also be liable to service tax under the category of Mandap Keeper Services'. The decision relied upon by the consultant of the hon'ble High Court of Karnataka is with reference to Outdoor Catering Services' rendered in an aeroplane and the other decision of the Tribunal in the case of Daspalla Hotels Ltd it is in respect of evidence relied upon by the appellant with regard to VAT paid on the value of food and beverages sought to be taxed under Convention Services'. In the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated independently and separately. If that be so, the argument that in respect of another assessee, there was a dropping of demand and hence, extended period of time should not have been invoked is not a legally acceptable argument. We further note that prior to April, 2005, the appellant had been discharging Service Tax on Mandap Keeper Services on the combined receipt of Food/Banquet Hall charges and only w.e.f. April, 2005, they started splitting the bills, one for the food and other for the Banquet Hall charges, so as to evade payment of Service Tax on catering charges. (b) The assessee cannot take place of the bona fide belief for the reason that the Hon'ble Supreme Court in the case of Tamil Nadu Kalyan Mandapam 2004 (167) ELT 3 (SC) decided on 15.4.2004 has clearly held that Mandap Keeper, who also undertakes catering services is liable to discharge Service Tax under the category of Mandap Keeper Services'. Therefore, this contention of the appellant is devoid of merits. (c) Further, we notice that the order dated 13.10.2010 relied upon by the appellant is contrary to the law laid down by the Hon'ble Supreme Court in this regard and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the audited Books of Account, a copy of which has been submitted before us, the taxable turnover works out to only Rs.5,45,12,396/- as against Rs.7,88,20,951/- taken for computation. This error needs to be rectified and the Service Tax amount needs to be recalculated by adopting the correct figures of the taxable turnover. 5.9 As regards contention of the appellant that penalty is not imposable, it is to be noted that penalty under Section 76 is imposable for default/delay in payment of Service Tax and no mens rea is required to be proved for imposition of penalty. Consequently, this argument has no merit. 5.10 As regards the imposition of penalty under Section 77 of the Act and under Rule 7C of the Service Tax Rules, 94, these are for contravention of the various provisions of law and, therefore, the penalty imposed under these provisions are sustainable in law. 5.11 As regards the penalty imposed under Section 78, the penalty under the said Section would apply only when there is a suppression of facts or willful mis-statement of fact with an intent to evade Service Tax on the part of the assessee. In the present case, from the records, it is clearly seen that prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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