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TMI Blog2019 (7) TMI 1679X X X X Extracts X X X X X X X X Extracts X X X X ..... ELD THAT:- The activity per se is not a service as the customers provides services to themselves after paying the applicable VAT. Therefore the demand on this score is not sustainable. Payment of service tax in respect of health club and finance service dry cleaning etc. - demand has been raised merely on the basis of value as reflected in the balance sheet as compared with the ST returns - HELD THAT:- The appellant has extended various count of discount to their customers which would definitely not with value of such services placing reliance on the decision of Bhayana Builders (P) Ltd [ 2018 (2) TMI 1325 - SUPREME COURT ] . The discount has been clearly and correctly reflected in their ledger account for the impugned period however same has not been taken into account while issuing the show cause notice or confirmation the demand - We are in agreement with the submission of learned Advocate that the discount is clearly mentioned in the ledger account as at page 20-58 of appeal paper book. Also, the appellant is entitled for the exemption as contained in Notification No. 14/2008 for providing the exemption paying to the foreign based service provider and travel agent - there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing various services such as restaurant and short term accommodation services classifiable under sub-clause (zzzzb) and (zzzzw) of clause 105 of the Act respectively. The appellant is also registered with the Department and providing host of other services namely, Mandap Keeper Services, Business Auxiliary Services, Rent-a-Cab services, Health Club and Fitness Centre services, Dry Cleaning Services and Internet Cafe etc. under the provisions of Section 65 of the Act. 3. The appellant was served with a show cause notice dated 7.10.2013 proposing recovery of service tax for the period 2008-2012 in contravention of Section 68 of Finance Act read with Rule 6 of Service Tax Rules 1994 (for short, Service Tax Rule) read with Notification No. 1/2006-ST dated 1.3.2006 as amended by Notification No. 34/2011-ST dated 24.4.2011 demanding service tax for the following services: 1. Service tax under restaurant service for pool side; 2 service tax under restaurant for mini bar service; 3. Service tax under health group and fitness service; 4. Service tax under Dry cleaning services; 5. Service Tax under Business auxiliary services; 6. Service tax under tour operator service; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the judgement rendered in their own case for previous period reported as The Oberoi Rajvilas, M/s Trident, M/s Oberoi Vanyavilas Vs. CCE, Jaipur - 2018 (5) TMI 1715 CESTAT (New Delhi). In addition, learned Advocate placed reliance on the following judgements: (a) Chandrapur Magnet Wires (P) Limited Vs. Collector 1996 (81) ELT 3 (SC); (b) Hello Mineral Water (P) Limited Vs. Union of India 2004 (174) ELT 422 (All); (c) Commissioner Vs. Sanjay Engineering Industries 2016 (43) STR 354 (Raj.); (d) Tree House Hotel Club Spa Vs. Commissioner - 2017 (4) GSTL 39 (Tri.-Del.); (e) Beekay Engineering Corporation Vs. Commissioner 2018-TIOL-292-CESTAT-DEL. (ii) The pool side restaurant is a non air-conditioned restaurant and hence the appellant has correctly discharged service tax under the restaurant service. The taxable service of restaurant is defined under Section 65(105)(zzzzv) of the Act which lays down two conditions to be fulfilled together: (a) The restaurant must have facility of air conditioning; and (b) It must have the licence to serve alcoholic beverages. 7. It was submitted that in the open air restaurant, there is no facility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive provision but the procedural provision under the rules. The appellant has provided service and taken credit for the taxable service which cannot be denied to them. The credit has been availed in accordance with the Cenvat Credit Rules and thus the allegation in the show cause notice with regard to availment of credit under 6(3A)(B)(ii) as they have not taken credit in respect of common input services which is used exclusively in the provision of exempted service. The impugned order has not given any categorical finding in this regard. The appellant has also contended that they have correctly availed the Cenvat credit amounting to ₹ 6,02,567/- under Rule 6(5) of the Credit Rules on the basis that the appellant has failed to adduce any evidence. 7.5 The appellant has also not been provided with as to what services have not been used exclusively for provision of exempted service. It is the submission of the learned Advocate that the appellant are covered under the Rule 6(5) of the Credit Rules, which provided for admissibility of entire credit on service specified services as per sub Rule 5 thereof, which are commonly used for providing taxable services. 7.6 The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also perused the case record. 10. As far as the issue regarding the abatement as per Notification No. 1/2006-ST is concerned, the same is decided in their own case vide the order of this Tribunal as referred (supra). The relevant extracted of the decision is reproduced as under ; 7. First we consider the claim of the appellant for the benefit of abatement in terms of Notification No. 1/2006-ST ibid. The abatement @ 50% and 70% will be available to short term accommodation service restaurant service subject to the condition that no cenvat credit is availed on input, input services and capital goods. The appellant does not deny the fact that they have availed the credit on input services. A part of the input services is exclusively used for provision of taxable services for which service tax is payable at full rate. Since the such cenvat credit has been used only for payment of service tax on taxable service at full rate, there can be no objection to allow the same. 8. In respect of the credit availed on common input services, the picture is not so clear. The services where the benefit of Notification No. 1/2006- ST is claimed, will fall under the definition of exempte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular No. 139/8/2011-TRU dated 10.05.2011 clarifies that within the same entity, if there are more than one restaurants, which are clearly demarcated the one with A/C alone will be liable to service tax. In view of the above clarification, there is no justification to demand service tax on the income from open air restaurant. 11. This decision has also been dealt with the levy of service tax on income from open air restaurant which is also in favour of the appellant. We do not find any justification of demand on these services. This finding of Hon ble Tribunal in these cases has also been upheld in the case of Jai Mahal Palace Hotel (supra). 12. Regarding the service tax under restaurant service for mini bar, we are in complete agreement with the submission made by learned Advocate that the activity per se is not a service as the customers provides services to themselves after paying the applicable VAT. Therefore the demand on this score is not sustainable. Coming to the payment of service tax in respect of health club and finance service dry cleaning etc., we find that demand has been raised merely on the basis of value as reflected in the balance sheet as compared with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find that the activities being undertaken by the appellant is not falling within the ambit of tour operator service which has two parts. First part covers person who is engaged in the business of planning, scheduling, organising or arranging tours and the second part covers any person operating tour in tourist vehicle having permit granted under Motor Vehicle Act/Rule. The appellant has only provided pick up and drop facility for elephant ride up to Kanota dam. This, therefore, cannot be treated as tour operator service as per the definition of service under the Act. The appellant is not engaged in business of operating tour and is recognised as luxury hotel and has not tour operator, therefore, demand is not sustainable. 15. We also find that the Show Cause Notice in this case is issued on 10.9.2013 by extended period of limitation on the ground that they have evaded payment of service tax wrongfully and also availed credit in wrong manner. As the entire fact was known to the Department and the Appellant used to provide service tax return and the unit has also been audited by the Department more than once. In view of above, we find that this is not a fit case of invoking e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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