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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 ..... service tax. Wide range of services are included in the definition of taxable services as far as mandap-keeper is concerned. The said definition includes services provided in relation to use of mandap in any manner and includes the facilities provided to the client in relation to such use and also services rendered as a caterer. 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 - U/s 65(66) of the Finance Act, 1994, Mandap means any immovable property as defined in section 3 of the Transfer of Property act, 1882 and includes any furniture, fixture, light fittings, and flour covering therein, let out for consideration for organizing any official, social or business function - the Commissioner (Original Authority) was correct in confirming the demand under Mandap-Keeper Service on the appellant. Extended period of limitation - suppression of facts or not - interestt - penalties - HELD THAT:- The reliance placed on the decision of Apex court in Commissioner of Service Tax, Mumbai Vs. M/s. UFO M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... van Nadar, Jai, Madhu, Sukanya or Aparna depending on the number of guests expected. The use of such halls is completely subservient to the customer s main requirement of providing catering services to large groups which the restaurants cannot accommodate and the seating arrangements are therefore made according to the likes of the customer. ➢ In many cases, as is common in our culture and society, very large groups host lunches or dinners for several hundreds of people with no particular purpose other than to serve high quality food to their friends or family or colleagues. In those cases, our banquet halls serve as a suitable when compared to the limited space offered by our restaurants to seat and accommodate people for the purpose of serving food and beverages on a large scale ➢ Thus, the use of our halls in the impugned transactions was provided only as an ancillary facility in those cases where our customers wish to avail our hotel s reputed catering services for large groups or 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 VA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 VAT returns. It is thus their case that when they have admittedly paid applicable sales-tax, there can be no levy under service tax as well, since both are mutually exclusive. 8.2. Per contra, it is the case of the Revenue that the appellant had not only made available the food and beverages, but had also made available lights, fans, their own staff used in rendering catering service to the guests, etc. and therefore, the charges for sale of food was inclusive of these service elements. The levy was thus justified and hence, the impugned order is perfectly in order. She also relied on the decision of Hon ble Apex court in Tamil Nadu Kalyana Mandapam Association Vs. Union of India 2006 (3) STR 260 (SC) [TNKMA for short] which has been extensively relied upon by the Adjudicating Authority in the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have noted that under S. 65(66) of the Finance Act, 1994, Mandap means any immovable property as defined in section 3 of the Transfer of Property act, 1882 and includes any furniture, fixture, light fittings, and flour covering therein, let out for consideration for organizing any official, social or business function. 13. The learned counsel had also contended that the decision of the Hon'ble Supreme Court in the case of TNKMA was not applicable or that the same does not preclude the 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 subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood without involving any service. In the impugned order, the original authority has held that the liability to service tax under Mandap Keeper Service arose due to non-declaration of the gross value of the appellant s service income detailed in the P L account as banquet food sales, in the taxable value as per the statutory ST-3 returns filed by them. It was thus held that the above facts were suppressed intentionally so as to evade payment of appropriate service tax. 17.1 We are unable to accept the logic in the impugned order justifying the invocation of extended period. Admittedly, the appellant has claimed that under a bonafide belief they have collected sales tax which was remitted promptly with their VAT returns, which is not disputed. Moreover, it is also not disputed by the Revenue that wherever food is arranged in such banquet hall, the appellant had only charged VAT / sales tax and no service tax was charged from its customers. We find that the reliance placed on the decision of Apex court in Commissioner of Service Tax, Mumbai Vs. M/s. UFO Moviez India Ltd [(2022) SCC Online SC 959] by the appellant is apt, wherein the Hon ble court has held that suppression means failu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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