9911796707
TMI Blog2025 (2) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... had submitted any further communication for removing the air conditioning facility and instead providing air cooler facility at the restaurant. However, the State Excise Officer vide letter dated 09.09.2013 informed that no such communication had been made by the appellant. It is clear that the statement made by the appellant on 28.12.2012 was a mere cover 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. In similar facts and circumstances in the case of Gurukripa Yuvraj Veg. & Non Veg. Restaurant vs. Commissioner and Additional Director General, Jaipur [2023 (8) TMI 1049 - CESTAT NEW DELHI.], wherein the proprietor was the same, Sh. Charan Pal Singh, has decided the matter and it was held that 'We, therefore do not agree with the aforesaid order of the Commissioner (Appeals). Unless and until, the appellant is able to produce any cogent and substantiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. The learned counsel for the appellant submitted that the Assistant Commissioner did not consider the statement dated 28.12.2012 of the appellant that the restaurant service without air conditioning facility, is not liable to service tax. The learned counsel submitted that the appellant vide his statement dated 28.12.2012, had submitted that the air conditioning was removed by the end of 2010. He further submitted that the appellant had power load / connection of only 0.22 KW at the restaurant, and it was not possible to run the AC on this power load / connection. Electricity bills were submitted on support of their contention. He further submitted that the appellant had never suppressed any information from the Department and had submitted information as and when demanded by the Department. Consequently, there was no intention of the appellant to suppress any facts or evade the tax. Hence, the proviso to Section 73(1) of the Finance Act, 1994 was not applicable. The learned counsel submitted that the extended period of limitation cannot be invoked in case of genuine interpretational issues in Rules. In support, learned counsel relied upon the following decisions:- a) Intern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led air conditioning system in 2010 (iii) Appellant had been issued State Excise registration w.e.f 14.07.2010 (iv) Grant of State Excise License and its renewal is based on turnover and having air-conditioning facility (v) Appellant's Restaurant Bar License was renewed in 2011-12, 2012-13 & 2013-14 (v) Appellant has not taken registration with service tax department 7. At the outset, we take into consideration the definition of Restaurant-cum-Bar Service as defined under Section 65 (105) (zzzzv) of the Finance Act, 1994. "Taxable service means any service provided or to be provided, to any person, by a restaurant by whatever name called, having the facility of air- conditioning in any part of the establishment, at any time during the financial year, which has license to serve alcoholic beverages, in relation to serving of food or beverage, including alcoholic beverages or both, in its premises." 8. From 01.07.2012, the Restaurant Service is defined under Clause (i) of Section 66E specifies service portion in an activity wherein goods, being foods or any other article of human consumption, are supplied as part of activity, as a declared service. Clause (1) of Section 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector General, Jaipur, wherein the proprietor was the same, Sh. Charan Pal Singh, this Tribunal vide Final Order No. 51093 of 2023 has decided the matter. The relevant paras are reproduced hereinafter:- "8. We also find that the revenue officials have fully investigated the case with the State authorities both on facts as well as on the legal aspect to ascertain the status of providing air conditioning facility in Restaurant-cum-Bar. As per State Rules/Conditions for granting the Bar Restaurant licence, it was mandatory to have air conditioning facility for obtaining and also for renewal of Restaurant- cum-Bar licence and the licence granted to the appellant was renewed regularly during the period from 2011-12, 2012-13 and 2013-2014. 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. We do not find any perversity in the appreciation of the material on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an order in appeal No. 352(CRM)/ST/JPR/2019 dated 03.10.2019 in their own case relating to the subsequent period from April 2015 to June 2017 whereby the Commissioner (Appeals) accepted the statement of Shri Charanpal Singh, Proprietor dated 28.12.2012 as to the non availability of air conditioning in their restaurant and accordingly held the appellant to be eligible for exemption under Sr. No.19 of Notification No. 25/20.06.2012. Needless to mention that the order of the Commissioner is not binding on us and it is open to us to decide the issue on merits in accordance with law. As discussed above, the statement of the appellant does not inspire any confidence and cannot be relied upon, particularly when there is no documentary proof that the appellant had discontinued the functioning of the AC at their restaurant and informed the concerned departments. We, therefore do not agree with the aforesaid order of the Commissioner (Appeals). Unless and until, the appellant is able to produce any cogent and substantive evidence in support of his statement that he does not have the AC facility in the restaurant, he is not eligible to claim the benefit of the exemption notification. The b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
