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TMI Blog2016 (11) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... nd section 65 B(44) as inserted by the Finance Act 2012 by the amendment made to the Chapter V of the Finance Act, 1994 to the extent the said provisions declares the service provided by the restaurant, eating joints or mess, in relation to serving of food and beverages (whether or not intoxicating) having Air Conditioning or Central Air heating in any part of the establishment at any time during the financial year; as 'Declared Service' under section 66E r.w.s 65B(22) and accordingly bringing under the definition of "Service" under section 65B(44) for the purpose of charging to service tax under section 66B of the Act' is illegal, ultravires, beyond the legislative competence of the parliament and unenforceable and liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether or not intoxicating) having Air Conditioning or Central Air heating in any part of the establishment at any time during the financial year." 2. The short facts involved in the writ petition would disclose that in the Finance Act, 2012 relating to levy and collection of service tax, a provision has been incorporated by which service provided by restaurant, eating joints or mess, in relation to serving of food and beverages (whether or not intoxicating) having Air Conditioning facility is part of service as defined under Section 65B(44) of the Finance Act, 1994 for the purpose of charging service tax. Petitioner is an association of Hotels and a few Hotels have approached this Court. 3. Counter affidavit has been filed on behalf of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II of the Seventh Schedule. ii) That if any payments have been made by the petitioners on the basis of the impugned clauses, they are entitled to seek refund of the same." 5. That was a case relating to charge of service tax on air conditioned restaurants where they were vending liquors and has licence to serve liquor. Since this case also stands in the same footing, I am of the view that the judgment in Kerala Classified Hotels (supra) applies to the fact situation of the present case also. The judgment in Kerala Classified Hotels (supra) has been upheld by the Division Bench of this Court in Union of India v. Kerala Classified Hotels and Resorts Association [2014 (4) KLT S.N.68 (C.No.85)]. It is submitted by the learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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