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TMI Blog2008 (12) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 4/2001-S.T. dated 9-7-2001, proceedings were commenced against them on the ground that they had availed exemption wrongly under Notification No. 21 /97-S.T. dated 26-6-1997 till 20-2-2002 and thereafter vide Notification No. 12/2001-ST dated 20-12-2001 on the convention services also even though these exemption Notifications are applicable only for Mandap Keeper services with the condition that substantial and satisfying meal is also supplied. While the Original Adjudicating Authority dropped further proceedings, the Commissioner exercising revision powers under Section 84 of Finance Act, 1994 confirmed a demand of Rs. 2,09,723/- being short payment of service tax for the period from 16-7-2001 to 27-6-2003 for the service provided under the category of convention services and Rs. 28,544/- being the short levy during the period from April, 1999 to June, 2003 for availing wrong exemption under Mandap Keeper service by not fulfilling the condition prescribed under exemption Notification. He also imposed penalties under Section 75, 76, 77 and 78 of Finance Act, 1994 and also demanded interest. 2. Heard both the sides. The ld. Advocate on behalf of the appellants submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mandap Keeper. Apart from the fact that there is subtle distinction between the type of events (official, social or business functions in case of Mandap Keeper as opposed to formal meeting in case of convention services), it was clarified that intention was not to charge service tax twice on the same service. The letter nowhere said that the assessees have liberty to classify the service provided under either of the services and pay tax. After the introduction of convention services, while assessee was not required to pay service tax twice if the classification could not be clearly made, where the classification could be made the service tax was to be discharged under the appropriate category of service. In any case assessee had no liberty to treat all the services provided as Mandap Keeper service. Unfortunately we find that the Dy. Commissioner did not take the subsequent circular issued by the Board into account at all, whereas Commissioner has taken note of the circular of the Board issued vide No.S.T.-51/13/2002 dated 7-1-2003 issued under F. No.178/1/2002/CX.4, which prescribed that; (i) Before levying service tax, it is essential to determine under which category a parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Mandap Keeper, the question is whether breakfast and high tea are substantial meals and fulfil the requirement of the Notification, Commissioner has observed that on going through the annexure to the show cause notice he had found that in many case appellants have provided only snacks, high tea, breakfast, Tea/Coffee, which cannot be any means fulfilment of the condition of supply of foods that the explanation that expression 'food' means substantial and satisfying meal. He also has observed the noticee's contention that the breakfast is laid out on daily basis including nearly 20 different food items and several beverages, that there is no restriction on the quantity of food a person could have as breakfast and such breakfast is a substantial meal of any reasonable standard, and the high tea is a British term that refers to substantial early evening meal that is often considered to be the main meal of the day is not correct. This is in view of the fact that the present issue is of providing breakfast or high tea is with relation to providing Mandap Keeper service in banquet halls. He also observes that breakfast or tea are provided as per the fixed requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner did not take the circular issued by the Board in 2003 into account and we also find that the appellants have also not submitted a copy of this circular in their paper book. In view of the above facts, it can be safely concluded that till 2003 when the further clarification Was issued by the Board, two interpretations were possible. Therefore invocation of extended period and imposition of penalties on the appellants cannot be upheld in respect of convention service. Therefore, the matter has to go back to the Original Adjudicating Authority to arrive at quantum of duty on the convention service payable which is within the time limit without invocation of extended period. In view of the fact that the Department also recognizes that there is only a subtle distinction between the two services, we feel that in the interest of justice appellants should get another opportunity to classify the services provided by them on different days under Mandap Keeper or convention service if they desire to do so. Therefore, the Original Adjudicating Authority should provide the details of services on which differential service tax is proposed to be demanded and give an opportunity to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an meal . The two se distinct words having dis hnct meanings at least under the facts od circumstances of the pr}sent case. If a person satisfies him/her self, depending on the nature of function, with breakfast of high tea, it does not definitely change the meaning of these two. Besides this, providing of only tea or coffee can also not be considered supply of substantial and satisfying meals _d ther}fore the be^cfit of exemption Notification No. 21/97 dt. 26-6-97 and Notification No. 12/2001 dt. 20-01-01 availed by the noticee is wrong and service tax amounting to Rs. 28,544.35 as per Annexure B to the SCN is recoverable from the assessee. 10. As is clear, the said notification provides exemption from payment of service tax by a mandap keeper, in excess of the service tax calculated on 60% of the gross amount for the facilities provided to the client for catering charges. Such explanation attached to the notification refers to the expression 'substantial and satisfying meals'. The said expression 'substantial and satisfying meals' does not stand defined anywhere. What has to be substantial and satisfying would thus vary from person to person. Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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