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TMI Blog2018 (12) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... vice. The invoices so raised by him show that the same were inclusive of charges of catering services. It is clear from the language of the notification that the nature of menu is not the criteria for availing the exemption but the menu served has to be substantial and satisfying - demand set aside. Taxability - convention services - Held that:- While holding senior management meet, dealer meet, customer meet, medical conference etc the appellants were providing the services and that of convention services and not the Mandap keeper services. The fact that those meetings continued till late hours and liquor in addition was served there does not alter the fact that these still were the meetings for the specific group of people for the professional/ official objective and were not open to general public - The findings of the Commissioner are therefore opine incorrect to this effect - However, since the liability while treating them as Mandap keeper service had admittedly been already, discharged, the differential, if any, shall only be payable under this head order accordingly is set aside to this extent. Taxability - 10% services charge/tips in the bills - Held that:- Section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issues involved are common in nature. 2. The appellant herein M/s. Taj Mahal Hotels are service tax registration holder for rendering services of, Mandap Keeper, Dry Cleaning service and health club and fitness centre w.e.f 13.sep.2002, 13.09.2002 and 22.08.1997. During the course of investigation it was observed by the department as follows: A. Appellants are receiving commission on account of foreign exchange incentives from M/s. LKP Financial services between July 2003 to July 2006 appellant had received ₹ 39,01,430/- but have not discharged the liability allegedly under Business Auxiliary Service being in tax net w.e.f 10.09.2004. B. The appellants were alleged to have wrongly availed the benefit of notification no. 12/2001 ST dated 20.12.2001 for the period 20.12.2001 to 09.07.2004 despite the fact that the said exemption was available to hotels registered under Mandap keeper if the substantial meal was served in the function held in hotel premises. Department alleged that the appellant did not pay the service tax on those invoices where tea /snacks/ breakfast were served. C. The functions like senior management meet, dealers meet, customer meet, medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 on the amount received as 10 % of the invoice value for Mandap keeping services. ii. The demand of ₹ 2,02,284/- as received for the period w.e.f August 2006 to March 2007 by the appellant as incentive from M/s. LKP Financial Services holding the appellant to be the service provider for Business Auxiliary service to said M/s. LKP Financial Service. The findings for confirming the said two demands have been challenged by the appellant vide Appeal No. ST/55336/2014 Thus all the alleged five demands have to be adjudicated. 5. We have heard Padmavati Patil ld. Advocate for the appellant and Mr. Amresh Jain ld. DR for the Department. 6. The ld. Advocated impressed upon that the appellant is an entity involved in rendering hospitality service. She submitted about each of the alleged demand separately. Accordingly the submissions of both the parties respective observations opinion of ours for each of the impugned services are as follows: A. Taxability of incentive received from M/s. LKP Financial Services Whether sustainable under Business Auxilary Service [55336/2014]: Since appellant has foreign guest also, keeping in view the comfort the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to get the foreign currency converted from any other outside Money Changers. Thus this is an in-house service facility availed by the appellant for their customers. Admittedly appellants otherwise are not a professional organization engaged in the service of a commission agent and, hence, cannot be said to be providing any service to M/s. LKP Financial. The purpose of entering into an Agreement with M/s. LKP Financial was only for providing the money changing facility to the guests of the appellant which cannot to be done, except under an authorization by the Reserve Bank of India. It is also an admitted fact that earlier the appellants themselves were authorized by RBI to provide this service to guests. From the BAS definition, as above, Business Auxiliary Service does not cover the aforesaid activity of Money Changing Facility, while Banking Other Financial Services specifically covers Money Changing Business , that too w.e.f 16.05.2008, Nomenclating the very same under Business Auxiliary Service for the purpose of charging service tax is therefore not proper and legal. Even otherwise also (appellant apparently admittedly are discharging service tax thereon, w.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng services i.e. the supply of food. It is impressed upon that food is explained in the notification itself to mean a substantial and satisfying meal. It is alleged that adjudicating authority below has made erroneous findings while holding the serving of tea and snack as serving of substantial and satisfying meal. The dropping of this demand is therefore prayed to be set aside. As far as the demand of service tax on the invoice where the tea/ snacks/ breakfast was served has been raised denying the benefit of notification no. 12/2001 dated 20.12.2001for the impugned period, we have perused the case law as relied upon by the appellant in welcome hotels (supra) case. Perusal makes it abundantly clear that Tribunal, while dealing with the contention of the department that providing snack tea/ coffee cannot, mean fulfill of condition supply of food has held that breakfast serving various food items is a substantial meal of any reasonable standards and the high tea is the British terms that refer to substantial early evening meal i.e often considered as the main meal. It was also held by the Tribunal that such being the case serving of high tea or breakfast with snacks tea and coffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to that extent is prayed to be set aside. To adjudicate the demand raised alleging the services of appellant as that of convention services it is important to know the definition. The convention services are defined under Section 65 (32) of the Act as: Convention means a formal meeting or assembly which is not open to the general public, but does not include a meeting or assembly, the principal purpose of which is to provide any type of amusement, entertainment or recreation; Definition from Act, And are taxable under Section 65(105) (zc) of the Act, as: [to any person], by any [person] in relation to holding of a convention, in any manner. Whereas Mandap is defined under Section 65(66) of the act to mean: Mandap means any immovable property as defined in section 3 of the Transfer of Property Act, 1882 and includes any furniture fixtures, light fittings and floor converging therein let out for a consideration for organizing any official, social or business function; and the Mandap keeper is defined under Section 65 (67) of the act as: Mandap keeper means a person who allows temporary occupation of a Mandap for a consideration for organizing any official, social or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the service herein seems to be that of convention service. However reliance is placed upon the decision of this Tribunal n the case of Taj view Hotel 2014 (36) STR 888 (Tri.-Del.) wherein the Board; circular dated 09.07.2001 is considered and it was clarified that apart from the fact of subtle distinction between the types of events (officials, social or business function in the case of Mandap keeper as opposed to formal meeting in the case of convention services) but the intention is not to charge the service tax twice on the same service. If a service provider is already registered as a Mandap keeper and paying service tax, he is not liable to pay service tax again under the category of convention services. Similarly, convention service is not liable to tax as Mandap keeper service also. Seen from above discussion about definitions and clarifications we are of the opinion that while holding senior management meet, dealer meet, customer meet, medical conference etc the appellants were providing the services and that of convention services and not the Mandap keeper services. The fact that those meetings continued till late hours and liquor in addition was served there does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly when we find no infirmity in the findings of the adjudication authority below while confirming this demand. The order to that extent is here by upheld. E. Taxability of services received from outside India: With respect to the services received from outside of India it is submitted on behalf of appellant, that the amount so received was not liable to service tax till 18.04.2006. Resultantly the demand in that respect for the period prior to 18.04.2006 is not sustainable and as such has rightly been dropped. With respect to demand beyond 18.04.2006, it is submitted that the same can be hit by the principal of limitation. Hence order to that extent is prayed to be modified. While rebutting these arguments and impressing upon the departments appeal ld. DR has submitted that since the appellant is a reputed hotel involved in rendering several kinds of services, any plea of non awareness about the statutory liability is not available to them. The non-payment in the given circumstances was nothing but an intention to evade tax resultantly the plea of limitation is not applicable them. The appellants are liable to pay service tax upon the remittances and the receipts. Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of appellant it is clear that they have taken the plea of being under some bonfide confusion either due to similarity between the Mandap keeper and the convention services or due to them not being the service provider for M/s. LKP Financial Services while getting facility of money exchange for their guest or due to the 10% amount of Service charge not being their income being disbursed among service boys and as such is not the taxable. But from the entire above discussion qua respective services where demand has been confirmed, it is clear that the appellant have failed to observe the statutory provisions of applicable laws and have interpreted the provisions the way it suited them and thus have committed non-compliance of the obligation cast upon them by the statutory provisions. It is also apparent from record that the appellant had not paid the, whatever tax, by the prescribed date. They had not disclosed the amount paid towards these services till the date the audit was conducted. There is no communication on record seeking clarification on account of pleaded bonafide confession. As per Section 70 of the act, the assessee has mandatorily to self assess the tax due on the se ..... 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