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TMI Blog2015 (7) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-05 inviting tenders from various Pandals and Shamiyana contractors for supply of various items as specified in the tender notice, such as tents, etc. The tender submitted by the petitioner was accepted by the Mela Officer Incharge. An agreement for supply of tents on hire purchase basis was executed. Clause 11 of the agreement specified that Trade Tax and Service Tax would be payable by the Officer Incharge, Magh Mela. The petitioner contends that based on the agreement, the petitioner supplied the necessary tents and thereafter raised three bills amounting to Rs. 97,39,351.50, which included Trade Tax @ 5% and Service Tax @ Rs. 10.2%. The Mela Officer made the payment of the bills minus Service Tax which amounted to Rs. 8,62,338.34. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No.2, i.e., the Central Excise Department, by which the petitioner has been directed to pay the Service Tax, interest and penalty on the bills raised by it to the Mela Officer. In the light of these facts, we have heard Sri Suyash Agarwal, the learned counsel for the petitioner, Sri Prateek Shukla, holding brief of Sri Vinod Kant Srivastava, the learned counsel for the Central Excise Department and Sri U.K. Pandey, the learned standing counsel for the State. By Finance (No.2) Act of 1994, Service Tax became payable w.e.f. 10.9.2004 on the services provided by Pandal or Shamiyana contractors. Section 65(77a) of the Finance Act defines ''Pandal or Shamiyana' as under: "Section 65(77a) defines Pandal or Shamiyana- Pandal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cafe, hotels, restaurants etc. delivers food to home and no charge, other than that for the cost of the foods, is charged (i.e. free home delivery) no service tax is leviable." The aforesaid clarification clearly indicates that the Pandal or Shamiyana contractor who provided services for pure religious ceremonies or congregation would not be liable to pay Service Tax. The stand of the Central Excise Department is that the petitioner is a Mandap Keeper and in view of Section 65(66) read with Section 65(67) of the Finance Act, the petitioner being a Mandap keeper is liable to pay Service Tax. For facility, Section 65(66) and 65(67) of the Finance Act, 1994 are extracted hereunder: "(66) "mandap" means any immovable property as defined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they provide services for purely religious ceremony and congregation. In this regard we may refer the provisions of United Provinces Mela Act, 1938, which was enacted for the purpose of conducting the Mela including the Kumbha Mela and Ardh Kumbh Mela at Allahabad. Section 4 defines Mela as under:- "4. Definition- (i) "Melas" means a religious fair or other religious gathering of the public other than- (a) a mela or gathering held under the authority of a local board; or (b) a Muslim religious gathering held in connection with a dargah or shrine." Section 9 gave power to the State Government to frame Rules and based on the said Section the United Provinces Mela Rules was enacted. Mela was defined under Section 2(ii) as under; "(ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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