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Landmark Service Tax Judgment - Mandap Keeper Services

Taxable Services - Mandap Keeper Services

Case Laws Related

  • STO 2014 CESTAT 14
  • Service Tax: Business of providing mandap keeper: Cenvat credit: Scope and admissibility: Appellant were availing cenvat credit of service tax paid by Indian Hotels Limited on Management or Business Consultancy which is one of the specified services in terms of provisions of Rule 6(5) of Cenvat Credit Rules, the appellant was availing 100% of the credit of tan paid. Revenue entertained a view that the service rendered by Indian Hotels Limited were franchisee services. It is a well settled proposition of law that classification cannot be changed in the hands of the service recipient. Tribunal in the appellant's own case involving the same issue has granted unconditional stay vide Order No. S/579/12 dated 12.03.2012. As such by following the same, pre-deposit of the same is waived.(Para 2,4). The provision of Notification No. 21/97-ST. dated 26-06-1997, as amended by Notification No 12/2004-ST dated 10.09.2004, the debar in the said notification was only in respect of availment of credit for duty paid on input or capital goods and not of service tax paid on input services. The said debarring was introduced w.e.f. 1.3.2006 vide Notification No. 1/2006-CE dated 1.3.2006. As such the appellant has a good prime-facie case for the period prior to 1.3.2006.(Para 5).

    Appeal disposed off.

  • STO 2014 CESTAT 52
  • Service Tax: Mandap Keeper Service, Renting of immovable property, during 2009-10 and 2010-11: Scope and liability: The income or property of the State which is immune to federal taxation under the provision of article 289 of the Constitution does not accommodate the property of a body create by a statute, such as the appellant. The property and income of the State, in Article 289, connotes the State as enumerated in the first schedule of the constitution and not every authority or body falling within the scope of an the instrumentality of the State or other authority, in Article 12 of the Constitution. The decision of the Supreme Court in APSRTC Vs Commissioner of Income Tax - AIR 1968 Supreme Court 1486 and in New Delhi Municipal Committee Vs. State of Punjab - (1997) 7.sec 339, conclude the issue on this aspect, against the appellant petitioner. In respect of renting of immovable property, given on lease to the Director General Special Protection Force; the A.P. Women's Commission and to the State Election Commission are not for or in furtherance of Commerce of Business, hence are outside the purview of the definition of renting of immovable property in Section 65(105)(zzzz) of the Act. Therefore, renting of the petitioner's immovable property may not amount to renting of immovable property for the use or in furtherance of business of commerce. (Para 2,3).

    Service of Sale of space or time for advertisement: Larger bench in Municipal Corporation, Jalandhar Vs. CCE, Ludhiana reported in STO 2011 CESTAT 1013 held that permitting the use of property for fixing poles/structures for putting up bill boards for advertisement or a permission granted by the Municipal Corporation for fixation of Kiosks for advertisement on street light poles would not amount to selling space for advertisement nor amount to providing any service in relation to sale of space for advertisements(Para 5).

    Pre-deposit ordered.

  • STO 2013 CESTAT 1284
  • Mandap Keeper Service: Appellant collected donations also and credited in “General Fund”: Appellant paid service tax on MKS and showed datewise receipt of donation collected: Pre deposit for demand of service tax on “General Fund” waived.

  • STO 2013 CESTAT 589
  • Mandap Keeper Service: Appellant hired/leased out the premises to Hotel Siddharth in consideration for an interest free deposit of Rs.40 lakhs: Transaction does not come under the purview of 'Mandap Keeper Service' under Section 65(67) of the Finance Act, 1994: Mandap Keeper means 'a person who allows temporary occupation of a Mandap for consideration for organizing any official, social or business function'. The crucial word is temporary occupation. Appeal allowed.

  • STO 2013 CESTAT 106
  • Mandap Keeper Service: Demand: Stay: Services rendered by mandap keepers as caterer would also be liable to service tax under the category of 'Mandap Keeper Services': Partial pre deposit ordered.

  • STO 2013 CESTAT 87
  • Mandap Keeper Service: Appellants collected advance tax, but could not provide services at the material time: Returned back the advances to customers along with service collected : Filed refund claim for service tax paid on Advances: Provisions of Rule 6(3) for adjustment of credit applicable: Authorities directed to allow them to utilize the excess service tax paid for the future services to be provided by them as there is no time limit indicated in the provisions of Rule 6(3) of Service Tax Rules, 1994 for the appellant to utilize or take credit of excess tax paid by him.

  • STO 2013 CESTAT 7
  • Mandap Keeper Service: Appellant under bonafide belief during the material period that tax was not payable on advances received as issue finally settled by Hon'ble Apex Court in the case of Tamilnadu Kalyana Mandapam Association STO 2004 SC 124: Penalties set aside by invoking Section 80 as tax before issuance of show cause notice.

  • STO 2013 CESTAT 22
  • Mandap Keeper Service: Appellant under bonafide belief that service tax need not be paid on advance received: Issue finally settled by Hon'ble Apex Court in the case of Tamilnadu Kalyana Mandapam Association STO 2004 SC 124: Penalties set aside.

  • STO 2013 CESTAT 206
  • Mandap Keeper Service: Cultural functions are also social functions and renting out the hall for cultural functions would attract Service Tax liability.

  • STO 2012 CESTAT 263
  • Mandap Keeper Service: Food items have been supplied under separate invoices and have discharged the sale tax liability are required to be given the benefit of Notification No.12/03-S.T.

  • STO 2011 CESTAT 252
  • Service Tax: Cenvat Credit: Input Services: Mandap Keeper Services: During the course of advertising and .publicizing the product the assessee enlisted the services of a mandap keeper which is an input service. This confirms to the definition of input service as defined under Cenvat Credit Rules, 2004. In the show cause itself the demand was raised on the basis of invoice issued by Bhagwati Banquets & Hotel Ltd., Ahmedabad which is an adequate proof of providing mandap keeper service. The appeal is allowed. (para 2,3)

  • STO 2011 CESTAT 248
  • Mandap Keeper Service: Car parking charges collected from client who availed mandap keeper service also includible in the taxable value and liable to be taxed.

  • STO 2011 CESTAT 13
  • Service Tax: Mandap Keeper Services: Mandap Keeper Service includes catering service : Section 65 (105) (m) : There is no scope of doubt that during period w.e.f. 16/6/05, the value of Mandap keeper service would include the value of catering service provided, which is the value of food and beverages plus the charges for serving the same. As regards the period prior to 16/6/05, the expression "services provided to a client by a Mandap Keeper in relation to use of Mandap in any manner" is wide enough to include the service of catering provided in course of use of Mandap (para 4.2)

    Service Tax: Mandap Keeper Services: Notification No. 1/06-ST dated 1/3/06: Central Government has powers to charge service tax on gross amount charged including the charges for catering and the abatement towards the value of food and beverages supplied allowed by issuing an exemption notification under Section 93 (1) of the Finance Act, 1994 is limited only to the extent it is prescribed in the exemption Notification No. 21/97-ST and its successor Notification No.1/06-ST, issued under Section 93 (1) even if the component of the value of food and beverages served is more than 40% of the gross amount charged. (para 5)

    Service Tax: Mandap Keeper Service: Notification No. 12/03-ST dated 20/6/03: For applicability of exemption Notification No. 12/03-ST there should be distinct "sale" of goods within the meaning of the term "sale", as defined in Section 2 (h) of the Central Excise Act, 1944, which by virtue of Section 65(121) is applicable to Service Tax matters and the benefit of exemption under this notification can not be extended to the predominant service contracts not involving 'sale' of goods primarily, as defined in Section 2 (h) of the Central Excise Act, 1944 misconstruing legal fiction of Article 366(29A). (para 6.1.1.)

    Service Tax: Mandap Keeper Service: Definition of sale under Article 366 (29A) of Constitution of Inida: Since Article 366(29A) had been inserted in the Constitution of India by 46th Constitutional amendment to enable the State Governments to charge sale tax on supply of goods or transfer of property therein in respect of certain transactions which were involved in service contracts or were not sale as commonly understood, by deeming the same to be sale, such extended definition of sale can be construed in the context of charging sales tax, not for understanding the scope of the word 'sale' in Service Tax exemption Notification No. 12/03-ST dated 20/6/03 (para 6.1.1.)

    Service Tax: Mandap Keeper Service: Pure Service Contract: When in a contract rendering of service is the predominant intention - the use of goods being unintentional and unavoidable for performance of service and the performance of such service is for some consideration, it will be a pure service contract not involving any sale even if invoice issued show break up of the gross amount towards value of the goods used and the value of service provided. However, if a contract is for supply of a specified quantity of goods at a specified price for use in performance of a service for separate considerations, such a contract will be a contract for sale as well as for service. (para 6.1.2)

    Service Tax: Mandap Keeper Service: Serving of food and drinks incidental: Just because a Mandap keeper charges a specified amount for serving food and beverages to the guests of its customers, that does not become sale of food and beverages, as the intention of the contract is providing service incidentally involving serving of food and drinks to the guests of the customer and the price charged for serving of food and drinks forms part of consideration of Mandap keeper service but not the price for sale of food and drinks.(para 6.1.2.1)

    Service Tax: Mandap Keeper Service: Burden of proof: No evidence was produced to show that in every case of providing service in relation to use of Mandap, the Appellant's agreement, with their customer was to supply a specified quantity of food and drinks at a specified price. The records show that the Appellant were serving food and beverages to the guests of their customers in course of providing Mandap keeper service for which they have billed the customer. These charges are the charges for catering service, not the charges for sale of food and beverages. (para 6.1.2.2)

    Service Tax: Mandap Keeper Service: No sale of food and beverages: There was no sale involved in the Appellant's transaction as Mandap keeper while serving their customers, for there is no sale of food and beverage as defined in Section 2 (h) of the Central Excise Act, 1944. When there is no sale of any materials or goods, the exemption under Notification No. 12/03-ST dated 20/6/03would not apply. This exemption notification is inapplicable to indivisible service contracts like the present one in hand. (para 6.1.2.3)

    Service Tax: Mandap Keeper Service: Indivisible Contract: For charging tax on such indivisible service contract, no legal fiction is required - service tax is to be charged if the service is taxable on the measure as chosen by the legislature, as it is settle law that measure of a tax is independent of the nature of the tax. The service tax can be charged on the gross amount charged for the service including the value of the goods used for providing the service. (para 6.1.3.1)

    Service Tax: Extended period of limitation: When the Department had knowledge that the Appellant are availing of exemption under Notification No. 12/03-ST dated 20/6/03 since 1/3/05, it can not be said that the Appellant suppressed this information from the Department with intent to evade the tax. Therefore only normal limitation period of one year from the "relevant date" would be available to the Department for recovery of short paid tax (para 7.2)

    Service Tax: Suppression of Facts: Penalty: There is no suppression of facts etc. on the part of the Appellant and this is a case of interpretation of exemption notification, and since the criteria for imposition of penalty under Section 78 ibid is the same as the criteria for invoking extended limitation period under proviso to Section 73(1), there are no grounds for imposition of penalty under Section 78. The same is, therefore, liable to be set aside. However, since the service tax was not paid by the due date, penalty under Section 76 has been correctly imposed. (para 8)

  • STO 2010 CESTAT 418
  • Outdoor Catering Service: Penalty: Appellant did not pay service tax due to favourable decisions: However, levy of tax and interest not disputed now: Penalty under section 76, 77 and 78 not imposable.

  • STO 2010 CESTAT 460
  • Mandap Keeper Service: “Amenities Charges” recovered includible in the taxable value: Suppression proved: Appeal rejected.

  • STO 2010 CESTAT 403
  • Service Tax: Mandap Keepers Service: Notification No. 12/2003-ST dated: 20.06.2003: In this case, just by splitting up the invoices for service in relation to use of Mandap into the invoice for food and drink served and for use of Mandap, the Appellant cannot claim that they are selling the food and drink, as the price charged for supply of food and drink is loaded with the value of various services and is it fact, the price for catering service, not for sale of food and drinks. When a Mandap Keeper, while providing catering service as part of the service in relation to use of Mandap by his client, serves the food and drink, just because by virtue of the legal fiction of Article 366 (29A) (f), sales tax is charged on the supply of the foods and drink served by treating the same as deemed sale, the Mandap Keeper does not became the seller of food and drinks for the purpose of Notification No. 12/03-S.T. (para 22.2)

    Service Tax: Pre-deposit: Following decision of Apex Court in the case Benera Valve 2006 (204) E.L.T. 513 (SC) = STO 2006 SC 1264 total waiver of pre deposit is unwarranted on the facts and circumstances of the present case. Considering totality of the facts and circumstances of the case and in absence of any evidence to the aspect of undue hardship before us, direct the appellant to make pre deposit of Rs. 60,00 lakhs ( (para 23)

  • STO 2010 CESTAT 301
  • Service Tax: Mandap Keepers Service: Pre-deposit: After going through the details of receipts issue in respect of rooms, it appears that the records speak otherwise and the statement of the trustee does not seem to be factual Further it is difficult to accept that Rs. 51,000/- received by the appellant can i. e considered as a business auxiliary service. Appellants have made out a strong prima-facie case in their favour. Accordingly the requirement of pre-deposit is waived and stay petition is allowed during the pendency of appeal. (para 4)

  • STO 2010 CESTAT 42
  • Service Tax: Mandap Keeper and Health club and Fitness centre: Cenvat Credit: Rule 6 (5) is a non-obstante clause and therefore completely widens the restriction contained in Rule 6 (3) (c). It is not the case of the Revenue that the taxable service on which service tax has been paid is not one of 17 categories specified in Rule 6 (5) of CENVAT Credit Rules, 2004. Impugned order is set aside by accepting that the assessees are entitled to entire credit, and allow the appeal with consequential relief due to the appellants in accordance with law. (para 2)

  • STO 2009 CESTAT 1548
  • Service Tax : Service of "Mandap Keepers" during the period 2000-2001 to 2004-2005 : Collected catering charges & exemption under Notification No. 14/2003 dated 20.06.2003 : Liability : Issue is now squarely settled by the decisions of the Tribunal in the case of Breach Candy Swimming Bath Trust Vs. CCE, Mumbai-I as reported at STO 2006 CESTAT 203, CCE, Mangalore Vs. Krishnapur Mutt as reported at STO 2003 CESTAT 59. The temple land is enclosed by a boundary wall and this Mandap is within the precincts of the temple land. The marriage hall or the Mandap is within the premises of the temple. This would fall within the category of the exemption under Notification No. 14/2003 dated 20.06.2003.(Para 4).

    Commissioner (Appeals) has come to a conclusion that marriage hall is within the precincts of the temple. From the grounds of appeal it appears that the Revenue has not disputed this fact. Their only contention that it is not within the temple premise, but it is in the property, for which they relied upon the dictionary meaning of "Precinct". Even going by the dictionary meaning "Precinct", from the photographs it is seen that the entire temple complex and marriage hall is enclosed by a boundary wall to indicate that entire property is within the temple premises of the trust. On perusal of Notification 14/2003 ST dated 20.06.2003, the said notification exempted the taxable services provided by a Mandap keeper for the use of the precincts of a religious place as Mandap, from the service tax leviable there on. In our view, the services provided by the respondent, will clearly get the benefit of Notification No. 14/2003, for the simple reason that the marriage hall is within the precincts of a religious place i.e. temple. Revenue has not disputed that there is a temple within the precincts as indicated in the photographs.(Para 6.1).

    Revenue appeal dismissed.

  • STO 2009 CESTAT 159
  • Service Tax: Mandap Keeper' for the period from 16/7/2001to 27/6/2003: Convention services wef 9-7-2001 vide Notification No.4/2001-ST: Exemption under Notification No.21/97-ST dt.26/6/1997, Notification No.12/2001-ST dt.20/12/2001: 'Convention services' were introduced w.e.f. 16/7/2001 vide Notification No.4/2001-ST dt.9/7/2001, proceedings were commenced against appellant on the ground that they had availed exemption wrongly under Notification No.21/97-ST dt.26/6/1997 till 20/2/2002 and thereafter vide Notification No.12/2001-ST dt.20/12/2001 on the convention services also, even though these exemption Notifications are applicable only for Mandap Keeper services with the condition that substantial and satisfying meal is also supplied. Commissioner has clearly observed that even after the issue of the No.ST-51/13/2002 dt.7/1/2003 issued under F.No.178/1/2002/C-4 the appellants failed to get convention service endorsed in their registration certificates and also failed to classify the services provided by them and pay tax as admissible. He has also given a clear finding that the services on which differential duty has been demanded for convention service were in relation to formal meeting/conference/assembly and therefore classifiable as conventional service. Even without the clarification by the Board, it is difficult to accept the appellants' contention that they can choose to pay tax under either of the services. Therefore, the Commissioner's order that the appellants should have classified the service each time either as convention or mandap keeper and should have discharged service tax appropriately has to be upheld.(Para 5).

    Whether breakfast and high tea are substantial meals in terms of Notification No.21/97-ST dt.26/6/1997 and 12/2001-ST dt.20/12/2001: Commissioner has observed that in many case appellants have provided only snacks, high tea, breakfast, Tea/Coffee, which cannot be any means fulfillment of the condition of supply of foods that the explanation that expression 'food' means substantial and satisfying meal. He also has observed ‘the noticee’s contention that the breakfast is laid out on daily basis including nearly 20 different food items and several beverages, that there is no restriction on the quantity of food a person could have as breakfast and such breakfast is a substantial meal of any reasonable standard, and the high tea is a British term that refers to substantial early evening meal that is often considered to be the main meal of the day is not correct. He also observes that breakfast or tea are provided as per the fixed requirement and menu of the clients and it is not unlimited or without restriction on the quantity of the food a person could have as breakfast as in the case of daily breakfast laid out by the noticee in their hotel. On this basis he comes to the conclusion that the appellants do not satisfy the conditions. On the one hand appellants claim that they provide either breakfast or high tea wherever exemption has been claimed. Commissioner's findings are that the appellants have provided breakfast or high tea as per the menu agreed upon. A heavy breakfast without any restrictions on the intake, can be considered as a meal in view of the definition of food even though in the Indian context, breakfast has never been considered as a meal. But the times are changing and in convention and such formal functions, a view can be taken that breakfast is nothing but a substantial meal. But as regards high tea in Indian context it is not taken as a substantive and satisfying meal. Therefore, where unlimited breakfast as contended by the appellants consist of several items of food and several types of beverages, it is provided can be said to fulfill the condition of the notification, but this is to be verified on the basis of actual facts. Therefore, the matter has to go back to the Original Adjudicating Authority for ascertaining whether this type of breakfast amounting to food as per the Notification was provided and appellants are eligible for exemption under the Notification No.21/97-ST dt.26/6/1997 and 12/2001-ST dt.20/12/2001.(Para 6).

    Diffrence of opinion: As to whether the claim of exemption in terms of Notification No.21/97 dt.26.6.97 in respect of high tea is required to be extended to the appellant as observed by the Member (Judicial) or the Same is to he denied as observed by the Member (Technical) and the matter is required to be remanded for examination of the above aspect as detailed in the order of the Member (Technical).

    Matter remanded.

  • STO 2008 CESTAT 273
  • Stay granted: The Appellants contention is if they are eligible for benefit of two notifications, they are entitled to choose whichever is more beneficial to them. The applicant is billing separately for the food and drinks, they may not, prima-facie, satisfy one of the conditions of Notification No. 21/97 and, therefore, there may not be a choice for them between notifications 21/97 and 12/2003. Prima facie case in appellants favour. Stay granted.

  • STO 2008 CESTAT 39
  • Catering Service: Respondents being in the Hotel business and the benefit  of Notfn.No.12/2001 dt.20.12.2001 extended by the Commissioner after going through the evidence on record. No merit found in the stay petition filed by the department against operation of Order passed by the Commissioner. Department’s appeal rejected.

  • STO 2008 CESTAT 66
  • Mandap Keeper Service : Parking facility on the adjoining place provided by applicant to the persons who book the mandap and the parking facility is not independently used by other persons who had not booked the mandap, The contention of the department that amount received in respect of parking charges to be added to the taxable value received as Mandap Keeper. Prima facie case not made out partial waiver granted.

  • STO 2007 CESTAT 1427
  • Stay : Mandap Keeper : Prima facie, the order shows that appellant is a temple wherein deity has been installed. Various religious activities in terms of Hindu religion are carried out like marriages, Brahmopadeshas, death ceremonies and other religious activities. Incidentally certain couples go before the deity and exchange garlands in proof of having married each other. The fact remains that the appellant is a temple where pooja is carried out and other daily religious activities are done.  The activities as enshrined under the definition of ‘Mandap Keeper’ are not done, therefore, appellants have made out a strong case in their favour.

  • STO 2007 CESTAT 1012
  • Mandap Keeper: Plot let out for certain functions by a charitable educational institution. As their main line of activities are not letting out plot on rent, the submission of the appellant that they had no intention whatsoever to evade service taxes is acceptable. Section 80 justified.

  • STO 2007 CESTAT 1384
  • Mandap keeper : Regarding applicability of services rendered by Mandap keeper where the service provider is Government department who give the auditorium on nominal charges, held that the mandap may be given on rent for many purpose, the purpose for which Mandap has been given on rent has to be examined. Issue covered by Tribunal’s earlier decision.

  • STO 2007 CESTAT 436
  • Service Tax: Mandap Keeper: Cenvat credit of Service Tax credit on telephone bills @ 35% in accordance with Rule 3(5): The applicant had utilized Service Tax credit @ 35% of the amount of Service Tax payable on the output service of 'Mandap Keeper' under Rule 3(5) of the Rules. The Commissioner (Appeals) has taken note of the fact that, the telephones were installed at the reception counter and for that reason the benefit of Rule 3(5) has been denied. It would, however, appear that, sub-rule (6) of Rule 3 speaks of, "service provided in relation to telephone connection". Therefore, even if telephone is installed at the reception counter, and if telephone connection is given to the Mandap area, that would, prima facie, satisfy the requirement of sub-rule (6) of Rule 3, so as to attract the provisions of Rule 3(5), in cases where no separate account of input service is maintained, and there are provided output services, which are subject to payment of Service Tax, as well as those which are in the exempted or non-taxable service category. Since the issue is debatable, partial pre-deposit should suffice(Para 2,3).

    Partial pre-deposit ordered.

  • STO 2007 CESTAT 461
  • Mandap keeper Service: Programmes of dance, drama and music are social function. In case rental is being charged by the owner or caretaker of any premises for holding such functions, they are liable to pay Service tax.

    Exclusion: film shooting and political meetings, it is very clear that they cannot be considered as social functions. Therefore, such instances have to be excluded from the levy of Service tax in the category of Mandap Keepers.

    Limitation: Because the appellants were under the bonafide impression that they were not liable to pay service tax, larger period cannot be invoked.

     

  • STO 2007 CESTAT 99
  • Service Tax: Mandap Keeper: Demand: Penalty u/s 76,77: The service tax levy on mandap keeper being a new levy and the respondent was unaware that services rendered by them were covered under Service Tax net. The Commissioner (Appeals) has rightly invoked the provisions of Section 80 and set aside the penalties imposed on the respondent. in terms of judgment in the case of Mass Marketing & Advertising Pvt. Ltd. v. CCE, Bangalore STO 2006 CESTAT 72". There is nothing on record contradicting finding or in the grounds of appeal filed by the revenue. Further, the issue is covered by the numerous decisions of the Tribunal setting aside penalties under amnesty scheme introduced by Government, as respondent has paid the service tax before the expiry of the amnesty scheme. The said amnesty scheme says that if service tax liability along with interest is paid within the stipulated time, there would not be any penalty on the assessee(Para 6).

    Revenue appeal dismissed.

  • STO 2007 CESTAT 189
  • Service Tax: Donations not in the form of rentals are not taxable: Receipt of donations cannot be brought within the ambit of service tax. The same has no connection to the rental received. Payments received by them in the form of donations has nothing to do with the rentals.(Para 2).

    Pre-deposit waived, stay allowed.

  • STO 2007 CESTAT 583
  • Service Tax: Mandap keeper: Scope: In the case of Saturday Club Ltd v. Assistant Commissioner, Service-tax Cell, Calcutta STO 2004 Cal 110, the Hon'ble Calcutta High Court held that :- "So far as the merit is concerned, law is well-settled by now that in between the principal and agent when there is no transfer of property available question of imposition of service tax cannot be made available. It is true to say that there is a clear distinction between the 'members club' and 'proprietary club'. No argument has been put forward by the respondents to indicate that the club is a proprietary club. Therefore, if the club space is allowed to be occupied by any member or his family members or by his guest for a function by constructing a mandap, the club cannot be called as mandap keeper, because the club is allowing his own member to do so who is, by virtue of his position, principal of the club.(Para 5,6).

    Appeal allowed.

  • STO 2007 CESTAT 286
  • Service Tax: Mandap Keeper: Waiver of penalty imposed under Section 76,77 & 78: Appellants explanation for non-filing, non-registration etc. is that they did not get themselves registered with Service Tax due to ignorance of law but later paid the service tax and filed returns and did not collect service tax but paid service tax and interest from their own pocket and since there was no willful negligence, penalty is not called for. The authorities below have not given any finding as to why penalty is required to be imposed upon them.(Para 2).

    Appeal allowed.

  • STO 2007 CESTAT 186
  • Service Tax: Mandap Keepers: Penalty: Appellant were not aware that they were liable to service tax as 'Mandap Keepers' and immediately on knowing that they were liable to pay service tax under this heading they paid it together with interest. In this view of the matter no case for imposition of penalty exists and hold that penalty is not sustainable.(Para 2).

    Appeal allowed.

  • STO 2006 CESTAT 523
  • Service Tax: Mandap Keeper: Demand on donations not relevant to service rendered: Part of the donation amount was independent of the services rendered by the appellants' trust.(Para 2).
    Partial pre-deposit ordered.
     

  • STO 2006 CESTAT 483
  • Service Tax: Mandap Keeper: Penalty u/s 76: In terms of said Section 76, penalty is imposable at the rate of Rs. 100/- per day, which would come to Rs. 1.65 Lakhs. The authorities below have taken the entire quarter, into consideration for the purpose of imposition of penalties, instead of taking actual days of delay. The penalty reduced to Rs. 1.65 Lakhs. (Para 3).

    Appeal rejected except reduction in penalty. 

  • STO 2006 CESTAT 111
  • Service Tax: Mandap Keeper: Scope and liability: The Circular No. 42/5/2002-S.T. dated 29-4-2002 refers in Para 3 to the clarification of 1997 regarding letting out of a hall for dance, drama music etc. From the above Circulars, it is very clear that drama, music, dance should also be considered as social functions. Reasoning of the CBEC in its Circular No. F. 332/82/97-TRU dated 24-9-1997 is agreeable. The Hon'ble Supreme Court, in Tamil Nadu Kalyana Mandapam Association v. UOI - STO 2004 SC 124 has held that taxable services could include mere providing of premises on a temporary basis for organizing any official/social or business functions. Hence, the decision of the lower authorities in holding that the services rendered by the appellants is liable to service tax under the category of Mandap Keepers is correct. However, it is found that the appellants were under a bona fide belief that they would not be liable to service tax. Hence, this is a case where Section 80 of the Finance Act, 1994 can be invoked with regard to penalties.(Para 6).

    Appeal disposed off.

  • STO 2006 CESTAT 203
  • Mandap keeper Service: The whole purpose of constituting the trust by its members is to avail facilities of salt water swimming bath, promotion and encourage sports of swimming in major restaurant and Bar. The trust has not been constituted for any gainful purpose. The services to be provided to them are not attracted to the service tax.

  • STO 2006 CESTAT 576
  • Service Tax: Mandap keeper: Scope and liability: The hotel charges collected in a joint premises cannot strictly fall within the four walls of the definition of 'mandap keeper' as hotel has an identity, 'personality' and function quite distinguishable from that of a 'mandap'. Services in respect of gardens have already suffered the tax. While a 'mandap' is not a residential property 'hotel' is used for residence, though temporarily. Unlike in a 'mandap' no public activity can take place in the privacy of a hotel room. (Para 4).

    Pre-deposit waived, stay allowed.
     

  • STO 2006 CESTAT 660
  • Service Tax: Mandap keeper: Scope and liability: Appellants are providing services of Mandap Keeper. As per the provisions of Finance Act," 'Mandap Keeper' means a person who allows temporary occupation of a Mandap for a consideration for organising any official, social or business function". The adjudicating authority gave a specific finding of fact that appellant had been maintaining a separate book for the purpose of booking the hall for marriage and other social function. This finding is not controverted by the appellants by providing any evidence. The appellants are renting out the hall, where marriages are solemnized for consideration, therefore, they are providing the services as Mandap Keeper and are liable to pay service tax. In these circumstances, there is no infirmity in the impugned order where by the demand of service tax is confirmed. As the gross amount received by the appellant is taken into consideration, therefore, the amount should be treated as cum-tax amount.(Para 5).

    Appeal disposed off.

  • STO 2006 CESTAT 370
  • Service Tax: Mandap keepers: Waiver of pre-deposit: Applicants' claim for 40% rebate in terms of notification 21/97-S.T., dated 26-6-1997, was accepted by the Deputy Commissioner for the period July 1997 to June 1998 by separate order dated 28-2-2004, who levied service tax only on the remaining 60% of the gross amount. This formula has become final, as the Revenue has not challenged this order. The applicants have already paid the service tax amount on application of this formula. A prima facie case for waiver of service tax and penalty has been made out(Para 3).

    Pre-deposit waived.
     

  • STO 2006 CESTAT 507
  • Service Tax: Mandap Keeper: Demand: In a similar case Service Tax pertaining to Town Hall of Mysore City Corporation. The matter had come up before this bench and this Bench was pleased to grant waiver of pre-deposit by Stay Order No. 526/2006, dated 1-6-2006 STO 2006 CESTAT 712  by following the ratio of the Calcutta High Court judgment rendered in the case of Dalhousie Institute v. Asst. Commissioner, Service Tax Cell reported in STO 2004 Cal 30 and Board's Circular No. 332/82/97-TRU, dated 24-9-1997 This order has applicability to the present case(Para 2,4).

    Stay application allowed.
     

  • STO 2006 CESTAT 730
  • Service Tax: Mandap Keeper: Scope and liability: It is an admitted fact that appellants are providing hall and rooms for organizing the marriages for consideration. As per the provisions of Section 65 of Finance Act 'Mandap Keeper' means a person who allows temporary occupation of a mandap for consideration for organizing any official, social or business function. Hon'ble Supreme Court in the case of Tamil Nadu Kalyana Mandap Assn. upheld that the constitutional validity of provisions of Section 65 of Finance Act considering all the aspects and held that service tax is leviable on Mandapams as Mandap Keeper. The reliance of the appellant in the case of Krishnapur Mutt (supra) will also not help the case of the appellant, as in that case the marriage is organized without any consideration that too in the Mutt. In view of the above decision of Hon'ble Supreme Court which is in respect of Kalyana Mandapams which provide place for consideration for organizing marriage, there is no infirmity in the impugned order.(Para 6,7).
    Appeal dismissed.

  • STO 2006 CESTAT 712
  • Service Tax: Mandap Keeper: Scope and liability: Town Hall built by Mysore City Corporation for holding public functions, which includes cultural and political functions, cannot be considered as "Mandap Keeper". The activities carried out in the Town Hall do not come within the ambit of "Mandap Keeper". The judgments including the decision of Calcutta High Court rendered in the case of Dalhousie Institute v. Asst Commissioner, Service Tax Cell reported in STO 2004 Cal 30 and Board's Circular No. 332/82/97-TRU, dated 24-9-1997 are relevant. The appellants are likely to succeed in the matter(Para 4).

    Pre-deposit waived, stay allowed.

  • STO 2006 CESTAT 885
  • Service Tax : Mandap Keeper : Scope and liability : Hon'ble Calcutta High Court decision in the case of Saturday Club Ltd. v. Asstt. Commr, Service Tax Cell reported in STO 2004 Cal 110 whereby it is held that when the services by the club to its members it is not covered under the scope of Service Tax liable as Mandap Keeper. The Hon'ble Calcutta High Court in another case of Dalhousie Institute v. Assistant Commissioner reported in STO 2004 Cal 30 also taken the same view. In view of the above decision of the Hon'ble High Court, prima facie, the applicant had a strong case in their favour(Para 3).

    Pre-deposit waived, stay allowed.

  • STO 2006 CESTAT 205
  • Service Tax: Mandap Keeper: Scope and liability: Appellants have produced the certificate of registration of M/s. B.L. Ruia Trust as "Mandap Keeper" under Section 69 of the Finance Act, 1994. The appellants had not produced any document in support of the plea that it is the trust which lets out open space and that the permission for use of the open space is given by the trust. However, in view of the production of the certificate of registration of the trust as "Mandap Keeper" interest of justice requires that the case go back for fresh decision to the adjudicating authority who shall extend a reasonable opportunity of hearing to the appellants. The appellants are at liberty to produce such document as they deem fit to support their plea that they are not liable to service tax and that the liability would be upon trust(Para 3).

    Appeal allowed by way of remand.

  • STO 2006 CESTAT 93
  • Service Tax: Penalty: Though ignorance of law is no excuse, still there is a ground for reducing penalty in view of the fact that the appellants are educational trust and have no intention to evade service tax. Penalty reduced(Para 2).

    Appeal disposed off.

  • STO 2006 Bom 213
  • Service Tax: Mandap Keepers’ Service: There is no relationship of 'mandap keeper' and the 'client' between the appellant and Saideep Caterers. Section 67 says that the valuation of taxable service for charging service tax shall be the gross amount charged by such mandap keeper from the client (hirer) for the use of mandap. The consideration received from the Saideep Caterers for giving monopoly rights is not the gross amount charged by the appellant from the hirer. The appellant on the basis of the agreements entered in to with Saideep Caterers, asks the hirer to take catering and decoration services, if needed, from Saideep Caterers alone, it cannot be said that the appellant has provided catering service indirectly to the hirer. The appellant has not charged the hirer of the halls on that account. (para 13,15,22)

    Service Tax: Mandap Keepers’ Service: “in relation to” Meaning of: That the phrase "in relation to" has to be construed to the widest amplitude needs no elaboration. The expression "in relation to" is a very broad expression which may presuppose another subject matter. 'In relation to' are words of comprehensiveness which might have both a direct significance as well as indirect significance depending on the context. The expression "in relation to" is used in the expansive sense. (para 16)

  • STO 2006 CESTAT 351
  • Service Tax: Service of Mandap Keeper: Demand: Waiver of pre-deposit: Commissioner (Appeals) has held that two places mainly Sahid Bhawan and Town Hall qualify to be considered as Mandaps and charges collected for rendering services from the clients is rightly taxable.(Para 2,5).

    Pre-deposit ordered.
     

  • STO 2006 CESTAT 778
  • Mandap Keeper: The halls and stadiums are let out for consideration for various functions, social and official, such as, sports, Garbas, educational programme, cultural & religious programmes and also for holding official functions. Tax payable, as the appellants were under the bona fide belief that they are not liable to pay Service Tax as they are a Statutory Government Body, penalty u/s 76 set aside.

  • STO 2006 CESTAT 98
  • Service Tax: Mandap keeper: Scope and taxability: Drama performances being conducted in the hall/mandap cannot be covered under the levy of Service Tax as mandap keeper. However, exact nature of this social functions is required to be established. Matter remanded to the original authority who should verify the bills for renting out for social functions and determine the nature of functions and thereafter determine whether such functions/engagements held would be covered under the definitions of Service Tax & recover the Service Tax thereon.(Para 2).

    Appeal allowed by way of remand.

  • STO 2006 CESTAT 229
  • Service Tax: Mandap Keeper Service: Waiver of pre-deposit: Appellants have permitted sale of toys, garlands, flowers, food and other articles in their premises and also out of total service tax determination Rs 60,000/- stands deposited. Rentals on sale of toys, garlands, flowers, etc. recovered by the Trust services of prima facie may not amount to Mandap Keeper. (Para 1).

    Pre-deposit waived.

  • STO 2005 CESTAT 92
  • Service Tax: Classification of taxable event: There was bonafide belief as to whether the auditorium where prayers are carried on comes within the ambit of "mantapam". This question is not answered by the authorities below. The activity is fully religious in nature and does not come within the category of social or cultural activity. The question relating to the activity of letting the auditorium for prayers and the same coming within the ambit of "mantapam" has not been answered by the authorities and also the correct amount of service tax has not been calculated, therefore, the matter is sent back to the Original Authority to consider both the pleas.(Para 2,3).

    Appeal disposed off.
     

  • STO 2005 CESTAT 50
  • Convention Service Vs Mandap Keeper: Penalty: The charge of suppression can be said to have been established when something material to the issue under consideration is not disclosed by the service provider.

  • STO 2005 CESTAT 161
  • Service Tax: Mandap keeper: Demand: Waiver of pre-deposit: The adjudicating authority found that the same rooms were allotted to persons booking the halls for holding the functions like marriage, etc. which other customers were shown to have occupied. This was to conceal the income being generated by 'mandap keeping' services under the garb of room rent receipts. The Commissioner (Appeals) has correctly given the finding that when one books a hall for a function, couple of rooms are given as a package deal. It is never the other way round i.e. one gets hall free while booking the rooms. Applicants have not made out a prima facie case for waiver.(Para 4).

    Pre-deposit ordered.
     

  • STO 2005 CESTAT 136
  • Service Tax: Mandap keeper services: Charitable institution: Whether donation can be construed as consideration for service rendered: There is no dispute that the auditorium fits in the definition of "Mandap" under Section 65 of the Finance Act 1994. "Mandap Keeper", defined under Section 65 (23) of the Finance Act, means a person who allows temporary-occupation of a mandap for consideration for organising any official, social or business function. It is, an admitted fact that Mandap was allowed to be used for orgainsing marriages during vacation and other holidays of the College. This activity has a professional character. Ambit of definition of "taxable service" is whether the amount collected by the Association from the Mandap users represented consideration for the service. The appellants contention that they collected only donations and such amounts were used for charitable purposes. Original authority should address the issue whether the amounts collected were donations or whether the amounts represented consideration for the service. (Para 4,5).

    Appeal allowed by way of remand.
     

  • STO 2005 CESTAT 327
  • Service Tax: Mandap keeper services: Demand on godown charges: There is no reason to disbelieve financial statement even on oath and by the supporting affidavit and documents. Therefore, the Service Tax has to be levied only on income earned from Marriage Hall and Function Hall and not on the income earned on the Godown. In this regard, the Tribunal ruling in the case of CCE, Bangalore-III v. Impress Ad-Adis & Displays - STO 2004 CESTAT 50 is relied which has scaled down the penalty on assessee establishing their bona fides. The Tribunal ruled that Service Tax being a new levy and the assessee being unaware about promulgation of the levy, therefore, exorbitant levy of penalty is not justified. Demand and penalties reduced.(Para 2).

    Appeal disposed off.

  • STO 2005 CESTAT 198
  • Service Tax: Mandap keeper: Scope and taxability: Demand: Judgment of Calcutta High Court in the case of Saturday Club Ltd. v. ACCE Calcutta, STO 2004 Cal 110 wherein the distinction between "Club" as in the present case with that of a "Mandap Keeper" is made and the Hon'ble High Court held that a "Club" cannot be equated with "Mandap Keeper" and struck down demand of service tax.(Para 1). The Hon'ble High Court distinguished the term of "Mandap Keeper" with that of "Members Club" and finally concluded that "Members" and "Club" both are same entity. It is held that one may be called as "principal" when the other may be called as "agent", therefore, such transaction in between themselves cannot be recorded as income, sale or service as per applicability of the revenue tax of the country.(Para 3).

    Appeal allowed.

  • STO 2005 CESTAT 253
  • Service Tax: Mandap keeper: Business function and business activity are distinguishable: Commissioner (Appeals) has rightly followed the Tribunal's decision in India Trade Promotion Organisation v. CCE, Delhi, STO 2003 CESTAT 26 that service tax is not leviable on rental charges received for use of space for business activity. Respondents had rented out their premises to various agencies for trade fair/exhibition. Such trade fair/exhibition was a business activity distinguishable from "business function". According to Section 65(67) of the Finance Act, 1994, "mandap keeper" means a person who allows temporary occupation of a mandap for a consideration for organising any official, social or business function. The distinction between "function" and "activity" was elucidated by the Tribunal in India Trade Promotion Organisation (supra). It was held that "function" did not include "activity".(Para 2,3).

    Revenue appeal dismissed.

  • STO 2005 CESTAT 2
  • Mandap Keeper Services: Appellant seeks waiver of pre-deposit and swiss cheap replica watches penalty; also contesting the quantification of Service Tax. The Revenue classified dance, drama or music per se as social functions which prima facie not within the ambit of 'Mandap Keeper' pre-deposited waived and stay granted.


  • STO 2004 CESTAT 28
  • Service Tax: Whether services of catering and decoration are part of Mandap keeper services: Refund: The Respondents have entered into two Agreements with Shri Saideep Caterers and Decorators for rendering the services of catering and decorations to the hirers of their community halls. It is clearly mentioned in both the Agreements that "Hirer always require the services of catering contractors" and "services of Decorators". The Agreements contain the condition that the Respondents shall not let out their community hall to any such person who refuses to avail of the services of the Decorators and caterers when such services are required. Thus the Respondents have entered into two exclusive agreements with Shri Saideep Caterers & Decorators for providing the services of catering and decoration to the persons who hire their community hall for social, cultural or religious functions. The service charges are received by them through Shri Saideep Caterers and Decorators as contribution to their Corpus. As per the definition given in Section 65(105)(m) of the Finance Act, 1994, taxable service includes the facilities provided to the client in relation to use of mandap. The expression "in relation to" is equivalent to 'concerning with' or 'pertaining to' and is expression of comprehensiveness. Thus any service which has a direct or indirect connection with use of mandap has to be treated as "in relation to" mandap, and has to be part of the taxable service in respect of which Service Tax has to be levied. (Para 5.2)

    Revenue appeal allowed.

  • STO 2004 SC 124
  • Mandap Keeper Service : Whether in the given case taxable services are rendered or not is a matter of interpretation of the statute and for adjudication under the provisions of the statute and does not affect the vires of the legislation and/or the legislative competence of Parliament. In fact, a wide range of services are included in the definition of taxable services as far as Mandap-Keepers are concerned. The said definition includes services provided "in relation to use of Mandap in any manner" and includes "the facilities provided to the client in relation to such use" and also the services "rendered as a caterer".

  • STO 2004 CESTAT 81
  • Service Tax: Mandap keeper services: Demand : Penalty U/S 77 : Tribunal in the case of STO 2001 CESTAT 206 held that Section 80 of the Finance Act, 1994 provides that no penalty shall be imposable for any failure of the provisions of Section 77 if the assessee proves that there was reasonable case for the said failure. The appellants' main activity is not Mandap keeping. It is only occasionally they let out the hall on payment to their members. Besides they have voluntarily paid all the tax along with while filing the returns though belatedly. Keeping all these factors in mind, the appellants have satisfied the provisions of Section 80(Para 8).

  • STO 2003 CESTAT 26
  • Service Tax: Mandap keeper services: Scope: Demand: The definition of "mandap keeper" states that he is a person who allows "temporary occupation of a mandap for consideration for organising any official, social or business function." The contrast made between carrying out official, social and business activities on the one hand and organising functions/events relating to these is clear from the words used. The levy covers only rents from functions/events. Therefore, the term function used in the definition cannot be equated with "activity", as contended on behalf of the Revenue. Since trade fairs are temporary markets the use of the stalls of ITPO for trade fairs was used for business as such, and not for ceremony/functions. (Para 8). A trade fair is nothing but a temporary market place, because what goes on at the fair is business as usual and not a business function.(Para 9).

  • STO 2003 CESTAT 59
  • Mandap Keeper: Mutt is charging 'Padakanika' or some consideration for organising mainly religious functions such as marriages and Brahmopadeshas. It is well settled position from the time immemorial that, marriage is sacred and sacrament as recognised under Hindu law. It is not a social contract.

  • STO 2002 CESTAT 34
  • Service Tax: Mandap Keepers: Value of taxable service: Religious donations cannot be considered to be added towards the value of taxable services. The worksheet is therefore required to be shown to the appellants and the appellants say thereon has to be obtained so that the taxable services are not computed to include religious donations offered to a temple, for purposes other than letting out the Mandap for functions. An inquiry report has been relied upon and a copy of the same was not supplied. Therefore, order is required to be set aside and remanded back for re-quantification and re-determination of the service tax liability.(Para 3).

    Appeal disposed of.

  • STO 2001 Mad 246
  • Service Tax: Mandap Keepers’ Service: Legislative Competence: There could be no dispute about the proposition that the Parliament would have no right to legislate under Entry 97 of List I if in pith and substance the subject covered by the impugned legislation is covered under any of the entries of List II or List III. Time and again, the Apex Court has reiterated that position. It is also the consistent view of the Apex Court that for this purpose the courts have to give the widest possible scope to the interpretation of the entries which are claimed by the petitioners to be connected with or to be covering the impugned legislation. (para 17)

    Service Tax: Mandap Keepers’ Service: Tax not on rent: Merely because the tax is charged on the amount charged by the "mandap keeper" on account of his having let out the premises, it would not mean that the tax is wholly and integrally connected with such charges and, therefore, amounts to a tax regarding the rent of such a land or pertains to the collection of rents of that land. (para 18)

    Service Tax: Mandap Keepers’ Service: Tax on Land or building in Entry 49 of List II: It is essentially a tax not on the land and/or building but a service offered with the use of the land and/or building. The impost of the tax is on a person who provides that service. It is that element of service alone which is the subject of tax and even applying the theory of pith and substance it cannot be said that it would amount to a tax on land and/or building. The tax on land and/or building is charged because such land and/or building exist irrespective of the fact whether they are used or not. The theory of pith and substance cannot be applied to the present tax, it does not in any way come near the barred border line of Entry 18 or Entry 49 of List II let apart its entry into that barred territory. Be that as it may, it is clear that this is a tax on service and is entirely independent of and different from the existing taxes covered by the taxes provided in List II. That itself would suggest that this cannot come within the arena of Entry 49 of List II also. (para 20, 26)

    Service Tax: Mandap Keepers’ Service: Not required to be owner of the property: The definition of "mandap keeper" on whom alone is the impost of service tax, it is obvious that such person need not be having any proprietary or ownership rights in respect of the immovable property. Any person allowing the user of the immovable property for the purposes mentioned in Sec. 65(22) or (23) whether he is the owner or not when provides a service for consideration, the tax is attracted. This is again an essential feature which gives a totally different colour to this tax than the one under Entry 49 of List II. (para 21)

    Service Tax: Mandap Keepers’ Service: Service provided by the mandap keeper as a caterer: Taxable Value: What is, therefore, to be taxed is the "service" given by the "mandap keeper", which would mean the "user of the mandap" and the "facilities provided therein", which "facilities" would be in relation to the "user" and also the services rendered by the "mandap keeper" as a "caterer". Therefore, the last words of the provision clearly bring out a position that it is the service provided by the "mandap keeper" as a "caterer", which is taxable and not the supply made by him of food, drink, etc. It can, therefore, be said that "catering service" could be given even without the supply of food, drink, etc. because even if a "mandap keeper" provides the services by supplying the crockery and similar articles or accoutrements and does not choose to supply food, drink, etc., which the customer may arrange himself, the "service" which has been given by the "mandap keeper" would still be that of a "caterer". The provisions are clear that the "gross charges" are to be taken into consideration while assessing the "service tax". The charge which has to be paid by the assessee is to be fully covered by the "gross charges" in respect of the service provided. (para 32,34,42A)

    Service Tax: Mandap Keepers’ Service: Levy of Sales Tax: The supply of food, drink, etc. by the mandap keeper may attract "sales tax". Though it may attract the "sales tax", it would also attract the "service tax" and, at any rate, the provision of service tax against such supply is not outside the legislative competence of the Parliament. (para 37)

    Service Tax: Mandap Keepers’ Service: Social, Official or Business functions: When any provision is to by understood, the first rule is that it has to be understood by its reference to the language. The terms given in the provisions clearly are to be understood by their plain meaning which are understood ordinarily. No difficulty about understanding as to what kind of function would be the "official function", "social function" or "business function". Again, there is a complete machinery given in the Act to decide the nature of the function. If a "mandap keeper" seeks any exemption or contends that the function for which he has provided the service of the user of the mandap is not of the nature covered by sub-sections (22) or (23), it would be for the assessee to claim any exemption and it would be for the authorities to decide. (para 40)

    Service Tax: Mandap Keepers’ Service: Discrimination: Though taxing laws are not outside Article 14, however, having regard to the wide variety of diverse economic criteria that go into the formulation of a fiscal-policy legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events, etc. for taxation. The tests of the vice of discrimination in a taxing law are, accordingly, less rigorous. In examining the allegations of a hostile, discriminatory treatment what is looked into is not its phraseology, but the real effect of its provisions. (para 41)

     
     

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