TaxTMI 
TaxTMI 
2018 (12) TMI 1127
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....unt of foreign exchange incentives from M/s. LKP Financial services between July 2003 to July 2006 appellant had received Rs. 39,01,430/- but have not discharged the liability allegedly under Business Auxiliary Service being in tax net w.e.f 10.09.2004. B. The appellants were alleged to have wrongly availed the benefit of notification no. 12/2001 ST dated 20.12.2001 for the period 20.12.2001 to 09.07.2004 despite the fact that the said exemption was available to hotels registered under Mandap keeper if the substantial meal was served in the function held in hotel premises. Department alleged that the appellant did not pay the service tax on those invoices where tea /snacks/ breakfast were served. C. The functions like senior management meet, dealers meet, customer meet, medical conferences etc were alleged to be covered under convention services and these were denied to be services of Mandap Keeper resultantly a demand of Rs. 42,00,490 for a period w.e.f. October, 2002 to June 2004 was raised. D. It was alleged that while rendering the Mandap keeper service the appellant were charging the service tax @ 10% of the invoices value but were not discharging the liability thereo....
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....een challenged by the appellant vide Appeal No. ST/55336/2014 Thus all the alleged five demands have to be adjudicated. 5. We have heard Padmavati Patil ld. Advocate for the appellant and Mr. Amresh Jain ld. DR for the Department. 6. The ld. Advocated impressed upon that the appellant is an entity involved in rendering hospitality service. She submitted about each of the alleged demand separately. Accordingly the submissions of both the parties & respective observations & opinion of ours for each of the impugned services are as follows: A. Taxability of incentive received from M/s. LKP Financial Services Whether sustainable under Business Auxilary Service [55336/2014]: Since appellant has foreign guest also, keeping in view the comfort the appellant was providing the facility of money exchange to them in its own premises. Earlier appellant itself was authorized by Reserve Bank of India to render the services of foreign exchange however later the said authorization was withdrawn under the guidelines of having specific authorized entities to provide the financial services as that of money change. It is thereafter that the said services are being provided for the appellant....
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....M/s. LKP Financial was only for providing the money changing facility to the guests of the appellant which cannot to be done, except under an authorization by the Reserve Bank of India. It is also an admitted fact that earlier the appellants themselves were authorized by RBI to provide this service to guests. From the BAS definition, as above, "Business Auxiliary Service" does not cover the aforesaid activity of Money Changing Facility, while 'Banking & Other Financial Services' specifically covers 'Money Changing Business', that too w.e.f 16.05.2008, Nomenclating the very same under 'Business Auxiliary Service' for the purpose of charging service tax is therefore not proper and legal. Even otherwise also (appellant apparently & admittedly are discharging service tax thereon, w.e.f. 16.05.2008) assuming, whilst denying, that there are two contesting heads of services: (i) 'Business Auxiliary Service (ii) 'Banking & Other Financial Services' Then by invoking the provisions of Section 65 A, specific description of the said activity would be under Banking & other Financial Services', as against general description under 'Business Auxiliary Service'. Show Cause Notice has p....
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....vice tax on the invoice where the tea/ snacks/ breakfast was served has been raised denying the benefit of notification no. 12/2001 dated 20.12.2001for the impugned period, we have perused the case law as relied upon by the appellant in welcome hotels (supra) case. Perusal makes it abundantly clear that Tribunal, while dealing with the contention of the department that providing snack tea/ coffee cannot, mean fulfill of condition supply of food has held that breakfast serving various food items is a substantial meal of any reasonable standards and the high tea is the British terms that refer to substantial early evening meal i.e often considered as the main meal. It was also held by the Tribunal that such being the case serving of high tea or breakfast with snacks tea and coffee satisfying the condition for food to be substantial and satisfying the Mandap keeper was held entitled to avail the benefit of the impugned notification. In the present case also the appellant hotel being registered as the Mandap keeper is providing the catering service. The invoices so raised by him show that the same were inclusive of charges of catering services. It is clear from the language of the n....
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.... which is to provide any type of amusement, entertainment or recreation; Definition from Act, And are taxable under Section 65(105) (zc) of the Act, as: [to any person], by any [person] in relation to holding of a convention, in any manner. Whereas Mandap is defined under Section 65(66) of the act to mean: "Mandap means any immovable property as defined in section 3 of the Transfer of Property Act, 1882 and includes any furniture fixtures, light fittings and floor converging therein let out for a consideration for organizing any official, social or business function; and the Mandap keeper is defined under Section 65 (67) of the act as: Mandap keeper" means a person who allows temporary occupation of a Mandap for a consideration for organizing any official, social or business function; And the service is made taxable under Section 65(105) of the Act as: "taxable service" means any [service provided or to be provided', Thus Mandap Keeper is a person, who allows temporary occupation of a Mandap for consideration for organizing any official, social or business function and these services are in tax net w.e.f. 10.07.1997. Whereas "Convention Services provider means a pers....
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....d to formal meeting in the case of convention services) but the intention is not to charge the service tax twice on the same service. If a service provider is already registered as a Mandap keeper and paying service tax, he is not liable to pay service tax again under the category of convention services. Similarly, convention service is not liable to tax as Mandap keeper service also. Seen from above discussion about definitions and clarifications we are of the opinion that while holding senior management meet, dealer meet, customer meet, medical conference etc the appellants were providing the services and that of convention services and not the Mandap keeper services. The fact that those meetings continued till late hours and liquor in addition was served there does not alter the fact that these still were the meetings for the specific group of people for the professional/ official objective and were not open to general public. The findings of the Commissioner are therefore opine incorrect to this effect. As a result of above discussion on this point, we hold that impugned services are that of convention service. However, since the liability while treating them as Mandap keepe....
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....that respect for the period prior to 18.04.2006 is not sustainable and as such has rightly been dropped. With respect to demand beyond 18.04.2006, it is submitted that the same can be hit by the principal of limitation. Hence order to that extent is prayed to be modified. While rebutting these arguments and impressing upon the departments appeal ld. DR has submitted that since the appellant is a reputed hotel involved in rendering several kinds of services, any plea of non awareness about the statutory liability is not available to them. The non-payment in the given circumstances was nothing but an intention to evade tax resultantly the plea of limitation is not applicable them. The appellants are liable to pay service tax upon the remittances and the receipts. Appeals are prayed to be disposed off accordingly. Coming to issue of making payment in foreign exchange for receipt of interim services from outside India, we are of the opinion that liability of service tax on services provide from outside India was made taxable only w.e.f. 18.04.2006 after insertion of Section 66A in the Statue book, as was held by the Hon‟ble Bombay High Court judgment in the case of Indian N....