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TMI Blog2024 (10) TMI 1546X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax liability under the above service. 2. Show-cause notice dated 12.10.2012 was issued to the appellant proposing to demand service tax under Mandap-keeper service for the period 2007-08 to 2011-12 [upto January 2012], along with applicable interests and penalties. The appellant appears to have filed a detailed reply refuting the charge of the Revenue as to any liability to service tax contending inter alia that ➢ Our hotel operated under the name of "Vijay Park" is highly reputed and well equipped to meet the needs of diverse customer groups. Apart from our excellent accommodation, our catering services are much sought after as a variety of cuisines including Chinese, Continental, Italian etc. are available. While we operate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gatherings. The banquet halls are thus used to facilitate the provision of the primary services viz. catering. ➢ Sales tax collected on the food charges on which they had filed VAT returns which were also furnished to the learned authority ➢ There is no suppression since they had remitted sales tax and hence the extended period of limitation was not invocable. 3. Para 3 of the Order in Original No. 11/2014-15 dated 14.10.2014 records that on verification of the invoices and banquet order forms, it was noticed that whenever a function was held in any of the above said halls, normally food was also served to the guests as detailed in the banquet menu card and at the rate per head specified therein. 4. The Order in Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided or to be provided as a caterer. 7. Section 67 deals with valuation of taxable services for charging service tax as per which, the value of taxable services - in relation to service provided by Mandap keeper to a client, shall be the gross amount charged by such mandap-keeper from the client for the use of mandap, including the facilities provided to the client in relation to such use and also the charges for catering, if any. 8.1. We have carefully perused the invoices placed on record as well as the written submissions filed before us and before the ld. lower authority. It is clear that the appellant has not charged service tax on its customers, it has only collected sales tax which is claimed to have been remitted through their VA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decision of Hon'ble Apex court in TNKMA case [supra]. "--- 44. The concept of catering admittedly includes the concept of rendering service. The fact that tax on the sale of the goods involved in the said service can be levied does not mean that a service tax cannot be levied on the service aspect of catering. -- 45. It is well settled that the measure of taxation cannot affect the nature of taxation. -- -- 54. In fact, making available a premises for a period of few hours for the specific purpose of being utilized as a Mandap whether with or without other services would itself be a service and cannot be classified as any other kind of legal concept... 55. In fact, Mandap Keepers provide a wide variety of services ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application of the predominant purpose / primary use test to determine correct classification of the service and in the case of those invoices issued by the appellant, services were nothing but catering service (primary purpose) and the provision of banquet hall was only ancillary. 14. The Hon'ble Supreme Court in the above case has very clearly dealt with even this aspect at para 57, which reads as under:- "57. A tax on services rendered by mandap-keepers and outdoor caterers is in pith and substance, a tax on services and not a tax on sale of goods or on hire purchase activities. Section 65 clause 41 sub-clause (p) of the Finance Act, 1994, defines the taxable service (which is the subject matter of levy of service tax) as any ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws with respect to matters enumerated in List II (State List). In respect of matters enumerated in List III (Concurrent List) both Parliament and State Government have powers to make laws. The service tax is made by Parliament under the above residuary powers." [Emphasis added] 15. From the above, the contention of the appellant has also been answered against the taxpayer by the Hon'ble Supreme Court. 16. In view of the above, we are of the clear view that the Commissioner (Original Authority) was correct in confirming the demand under Mandap-Keeper Service on the appellant. 17. The disputed period for which the service tax has been confirmed is from April 2007 to January 2012; the appellant has contended that there is no suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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