2024 (4) TMI 35

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....e provides recreational facilities to customers by offering bowling alley, video and other fun games, restaurant facility, sale of socks and supply of shoes; all the said facilities are independent of each other and chargeable separately, depending on the services availed by the customer; such recreational facilities have a proper demarcation for access; as an example it has been stated that a customer may choose to access only restaurant services at the dining section of the Centre in which case he would be invoiced only for the food and/or beverages consumed by him; and separate entry/admission fee is not collected for entering the Centre. 3. The tax treatment undertaken by the appellant in respect of the activities undertaken by it at the Centre has been stated to be as follows : i. Income from Bowling Alley No service tax was paid till 30.06.2015 on charges received against access provided to bowling alley facility as the access to such amusement facility was covered under the Negative List of services. With effect from 01.06.2015, service tax was paid at the applicable rate as the services provided by way of access to amusement facilities was deleted from the Negat....

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.... with interest; (iii) Cum-tax benefit is not extendible as there is nothing on the record to show that service tax was not recovered by the appellant on the income; and (iv) The appellant suppressed material information by not declaring income from bowling alleys in the returns. Hence, invocation of extended period of limitation was warranted and penalty under section 78 is imposable. 7. Shri V. Lakshmikumaran, learned counsel for the appellant assisted by Ms. Shagun Arora and Mr. Kunal Aggarwal made the following submissions: (i) Bowling alley income is covered under section 66D(j) of the Finance Act; (ii) Neither the show cause notice nor the impugned order have provided any basis for arriving at the allegations/conclusions. Thus, the vagueness in the demand is apparent, leading to unsustainability of the demand; (iii) The understanding of the department is incorrect to the extent it has disallowed the appellant from being covered under the scope of section 66D(j) of the Finance Act since it provides services other than amusement activities at the Centre. The definition of 'amusement facility' does not disqualify a facility from bei....

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....any case, considering the bona fide of the appellant, the present case would also be covered under section 80 of the Finance Act for waiver of penalties. 8. Shri Rajeev Kapoor, learned authorized representative appearing for the department, however, supported the impugned order and submitted that the contention of the appellant that during the disputed period service relating to 'admission of entertainment events or access to amusement facilities' was included under the Negative List of services provided under section 66D(j) of the Finance Act is incorrect as the service provided by the appellant does not qualify to be 'amusement facility' defined under section 65B(9) of the Finance Act. Learned authorized representative also submitted that the extended period of limitation was correctly invoked and the cum-tax benefit was also correctly denied. 9. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 10. The contention of the appellant is that the bowling alley income is included in the Negative List under section 66D(j) of the Finance Act. 11. The impugned order ho....

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....any activity does not affect the levy of service tax on services covered by The Finance Act, 1994 as amended. ***** I find that the instant case is different from the above clarification inasmuch as no charges for access to amusement facility are being collected in this case. Rather, this is an undisputed fact that no charges for access/admission to the facility were being collected by the Noticee i.e. entire collection from the visitors is from services which are other than "Admission to entertainment events or access to amusement facilities" which only is exempted. Therefore, the reliance on this clarification is irrelevant and is not applicable to the case in hand." ***** 17. From the above facts, I find yet another reason for non coverage of Noticee under the said entry. The Noticee is providing recreation facility by way of bowling alley and also, providing other services within same place/ premises having common entry or exist point. Further, the Noticee has indivisible tenancy right which is used for all of the activities. Also, the Noticee is not collecting any access or admission fees to enter into such place while the Noticee is collect....

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.... clear demarcation between such recreational facilities, and that separate entry/admission fee is not collected for entry into the Centre. 16. The order has disallowed the appellant from being covered under the scope of section 66D(j) of the Finance Act as it provides services other than bowling alley activity also at the Centre. The definition of 'amusement facility' does not disqualify a facility from being covered under its scope only because services other than fun or recreation are provided in any part or place of such facility. The definition only excludes such other places from the scope of amusement facility, which means that charges recovered for access to the excluded premises would continue to be taxable. 'Amusement facility' has been defined to mean a facility where recreation or fun is provided by means of bowling alleys. However, a place within such facility where services other than bowling alley are provided would not be covered under the definition of 'amusement facility'. The word 'where' in the last portion of the definition of 'amusement facility' means the 'place' where other services are provided, and not 'facility'. Once 'bowling alley' qualifies as a faci....