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2017 (9) TMI 1380
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.... Memorandum. B. The Appellant further submits that Mandap Keeper Service, does not cover accommodation service by offering rooms for short term stay in the hotel owned by the Appellant. The accommodation service has been specifically brought within the service tax with effect from 01 May 2011 by inserting a new taxable entry under section 65 (105)(zzzzw) of the Finance Act, 1994. C. It is settled position in law that when a specific new service is introduced without carving out any scope from the existing service category, such service can be liable to be service tax only prospectively i.e. from the date of introduction of such new service in the statute book. On this proposition, the Appellant refers to and relies upon the judgement of t....
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....ax, Jaipur Vs. M/s. Taj Hari Mahal reported in 2017-TIOL 909 CESTAT DEL (c) Merwara Estates Vs. Commissioner reported in 2009 (16) STR 268 (Tribunal) G. The Appellant submits that in their own case for the period July 97 to June 1998, the Deputy Commissioner vide his order dated 28.02.2004 at para 12 has categorically held that element of room charges and other facilities provided in the room do not attract any service tax and the same is not required to be taken into consideration while calculating taxable value. This finding is not appealed against by the Revenue and in the absence of any change in law or facts, by applying the principle of res judicata, the Revenue cannot agitate on the same issue for the subsequent period. H. In fac....
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....ts, the demand for the extended period and penalties are certainly not sustainable in the given facts and circumstances. The Appellant also prays for benefit of section 80 of the Finance Act, 1994 for waiver of penalties in the present facts and circumstances. 3. Shri M.K. Sarangi, Ld. ADC (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. He submits that the appellant are engaged in providing Mandap Keeper Service wherein the client availed the services of banquet along with lodging in the rooms of the appellant. The appellant is paying service tax only on the banquet and food after availing of 40% abatement whereas against composite amount for banquet, food and room charges they have not included the ch....
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....ndap Keeper Service for the entire amount of the room rent collected by them. 9. In yet another angle of the case we find that the adjudicating authority by an order dated 28/02/2004 for an earlier period has specifically recorded that the appellant is not charging anything separately for the use of the conference halls hence their activity would fall under the category of "Mandap Keeper Service". In order to settle issue amicably, adjudicating authority arrived at a base element for assessment of charging service tax under Mandap Keeper Service on the 20% of the amount collected as room rent subject to further abatement as per Notification No.21/97-ST dated 26/06/1997. It has been informed to the bench that this order of the adjudicating....
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.... the temporary occupation of hotel rooms or the purpose of boarding, temporary residence. It is not disputed that no function is held in the hotel room which is used for the purpose of staying in the same. As such, we are of the view that the order of the lower authorities holding inclusion of the hotel rooms rent into the value of Mandap Keeper Service is not sustainable. The same is accordingly set aside and the appeal is allowed with consequential relief to the appellant." ii) In the case of CCE Vs. Taj Hari Mahal - 2017-TIOL-909-CESTAT-DEL, the Tribunal held as under:- "5. We have heard both the sides and perused the appeal the records. We find that the department held the view that the charges collected for letting out rooms for acc....
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....tion is held in the hotel room which is used for the purpose of staying in the same. As such, we are of the view that the order of the lower authorities holding inclusion of the hotel rooms rent into the value of Mandap Keeper Service is not sustainable. The same is accordingly set aside and the appeal is allowed with consequential relief to the appellant". iii) In the case of Merwara Estates - 2009 (16) STR 268, the Tribunal held as under:- "4. We find that a prima facie view was taken at the stay stage that the Appellants are not liable to pay Service Tax in respect of the charges recovered for renting of the hotel. The only submission by the Revenue is that the cited decision in the case of Rajmahal Hotel (supra) supports the Revenue&....