2019 (4) TMI 184

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.... rooms, they were not discharging service tax. Ld. Chartered Accountant argued that no tax under the category of Mandap Keeper service is leviable as in those cases no amount was charged for providing space for conference facility and only billing is done for food and/ or rooms. He further pointed out that cum-tax benefit has not given to the appellant. He argued that they were entitled to abatement however the same was denied on the ground that appellant have availed Cenvat credit. He pointed out that during the period 2001 to 2006, there was no restriction on availment of Cenvat credit. However, after 01.03.2006 restriction regarding availment of Cenvat credit was brought in vide Notification No. 1/2006-ST dated 01.03.2006. He pointed out that prior to this period, vide Notification No. 12/2001 a blanket abatement of 60% was granted without any restriction regarding availment of Cenvat credit. 3. Ld. Chartered Accountant further pointed out that penalties under Section 76 and 78 have been imposed. He argued that in view of the decision of Hon'ble Gujarat High Court in the case of Raval Trading Company vs. CST - 2016 (42) STR 210 (Guj.) simultaneous penalty under both the sec....

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.... Court in paras 55 and 57 thereof held as follows : "55. In fact, mandap-keepers provide a wide variety of services apart from the service of allowing temporary occupation of mandap. As per Section 65(19) 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 floor coverings therein let out for consideration for organising any official, social or business function. A mandap-keeper apart from proper maintenance of the mandap, also provides the necessary paraphernalia for holding such functions, apart from providing the conditions and ambience which are required by the customer such as providing the lighting arrangements, furniture and fixtures, floor coverings, etc. The services provided by him cover method and manner of decorating and organising the mandap. The mandap-keeper provides the customer with advice as to what should be the quantum and quality of the services required keeping in view of the requirement of the customer, the nature of the event to be solemnized etc. In fact the logistics of setting up, selection and maintenance is the responsibility ....

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....r of this service tax is evident from the fact that the transaction between a mandap-keeper and his customer is definitely not in the nature of a sale of hire purchase of goods. It is essentially that of providing a service. In fact, as pointed out earlier, the manner of service provided assumes predominance over the providing of food in such situations which is a definite indicator of the supremacy of the service aspect. The legislature in its wisdom noticed supremacy and identified the same as a potential region to collect indirect taxes. Moreover, it has been a well established judicial principle that so long as the legislation is in substance, on a matter assigned to a legislature enacting that statute, it must be held valid in its entirety even though it may trench upon matters beyond its competence. Incidental encroachment does not invalidate such a statute on the grounds that it is beyond the competence of the legislature (Prafulla Kumar v. Bank of Commerce). Article 246(1) of the Constitution specifies that the Parliament has exclusive powers to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution. As per Article 246(....

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....te Tribunal was right in holding that no evidence was produced by the appellant regarding quantum of room rent notwithstanding the Order-in-Original No. 1/STC/2004, dated 12th March, 2004 of the Deputy Commissioner (STC), Central Excise, Pune-I treating 80% of the consolidated charges collected as room rent? (ii) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in holding that the entire consideration received by the appellant was towards the conference hall/banquet hall and liable to Service Tax under Mandap Keeper Service? 9. Having heard both sides and finding that it is only because the appellant could not produce the requisite evidence that it has dismissed the appeal of the Assessee, we are of the view that without expressing any opinion and to subserve larger interest of justice, the opportunity to produce the evidence could have been afforded even by the Tribunal during the course of such appeal. The Appeal has been dismissed only on a technical ground and for non-production of the requisite certificate or proof of room rent being charged and bills raised in that behalf. In the circumstances, the impugned order is quashed and set aside....