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TMI Blog2023 (8) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... h air cooler was provided by the end of year 2010 till 31.12. 2012 - it appears that the statement made by the appellant on 28.12.2012 was a mere cover up so as to avoid any service tax liability and there is no substantive proof in support thereof. On the contrary, it is on record that in the initial application made by the appellant on 23.6.2010 for availing the liquor licence the restaurant had air conditioning facility. There is nothing to rebut this documentary evidence and therefore the case of the appellant is not acceptable. The licence is currently valid which means that the appellant is still running the Restaurant-cum-Bar and as per the Restaurant Bar Licence policy and law of State Excise Department the appellant needs to comply with the conditions linked with the grant of licence as well as for the renewal of the licence and one of which is that air conditioning facility is provided therein - there are no perversity in the appreciation of the material on record and therefore, the plea taken by the appellant that they have dispensed with the air conditioning facility is not correct and needs to be rejected. Suppression of facts - extended period of limitation - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax and also provide details of amount received on account of services provided by them during the period from May 2011 and onwards. Further the Superintendent Central Excise and Service Tax Range, Beawar vide his letter dated 07.09.2012 issued to the service provider asked them to provide the copy of Registration certificate obtained from State Excise department for bar license, Sales Tax Return/ Income Tax Returns, bill book, details of bank account for the financial year 2011-12. Since no reply was received the Superintendent, Central Excise and Service Tax Range, Beawar issued a summon dated 19.12.2012 with a request to provide the details/ documents related to Restaurant service provided by them during the period from 01.05.2011 t0 31.08.2012. In compliance, Sh. Charan Pal Singh, proprietor of M/s Gurukripa Yuvraj Veg. Non-Veg. Restaurant, Beawar is having State Excise Registration No. 119/2010-11 dated 14.07.2010. On being asked whether all terms and conditions of the Excise License issued by State Excise Department, Udaipur Rajasthan are being fulfilled by them it was stated that they were fulfilling all the conditions stipulated in their registration certificate. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration dated 23.06.2010 submitted by the proprietor of notice. It is observed that in his application the proprietor of the said restaurant declared that the restaurant is air conditioned and turnover of more than Rs. 10 lakhs, License No. 119/2010-11 for the retail sale of Beer, ready to drink (R.T.D.) liquor and wine at restaurant was issued to the service provider. On specific query whether the licensee submitted any intimation for removing the A.C. installed for adding another A.C. in the licensed premises, DEO replied that till date no comprises letter is submitted by the said party regarding removal or installation of air conditioner, moreover the committee comprises of departmental officers examined the declared facts and in routine the Excise Inspectors checks the licensed premises from time to time, too. 7. Whereas, it appears that the Service Provider has provided the services under the category of Restaurant Service defined under Section 65(105)(zzzzv) is taxable under Section 66 till 31.12.2013 and thereafter under Section 66B of the Finance Act, 1994 and having a valid license to serve alcoholic beverages issued by the State Govt. Authorities. As per VAT Ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice portion in an activity wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity. 7. We find from the records that subsequent to the inclusion of the services provided by the Restaurant having facility of air conditioning in the service tax net, letter dated 7.9.2012 was issued by the department calling upon the appellant to provide details of Registration Certificate, Bar licence, STR/ Income Tax Returns, bill books and bank account details for the financial year 2011-2012. The appellant in terms of summons dated 19.12.2012 appeared on 28.12.2012 and in his statement recorded under section 14 of the Act, stated that on 8.7.2010 when he obtained Bar licence he was having air conditioning facility in his Restaurant-cum-Bar but air conditioner was removed and instead air cooling facility through air cooler was provided by the end of year 2010 till 31.12. 2012. We also find that on enquiry, copy of the application along with the declaration as submitted by the appellant for obtaining the liquor licence was produced by the State Excise Department which clearly mentioned that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be suppression or wilfull misstatement of fact with intent to evade payment of duty. There is no doubt on the principle enunciated in the said decisions, however we are of the view that in the facts and circumstances of the present case the appellant has tried to play fraud on two departments and have taken the plea which is beneficial to him with sole intent of evading the tax liability. We would refer to the observations of the Commissioner (Appeals) made in the impugned order:- 8. I find that appellant had AC facility in 2010-11 but no AC facility was there in 2011-12 does not appear to be acceptable. The above admittance clearly shows intention of the appellant to defraud two Revenue Department at the same time, first to State Excise Department by violating the condition of license and getting the same renewed without fulfilling the criteria fixed in the Excise Policy and Second to Central Excise and Service Tax Department by not paying service tax on the pre-text that they were not having Air conditioning facility, thus not liable to pay service tax. The appellant was morally duty bound to fulfill the conditions of the license issued by the State Excise Department othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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