By TIOL News Service

MUMBAI, JAN 28, 2015 : THIS is an application filed by Revenue for rectification of mistake in the final order passed by the Bench in the matter of appeal filed by M/s Hotel Amarjeet Pvt. Ltd.

We reported the final order as - 2014-TIOL-589-CESTAT-MUM and the connecting orders in the matter of the stay application as well as the appeal before the Bombay High Court as - 2013-TIOL-616-CESTAT-MUM & 2013-TIOL-1181-HC-MUM-ST respectively.

Be that as it may, the facts of the case are - The appellant is registered with the department under the category of ‘Mandap Keeper Service'. While rendering ‘Mandap Keeper Services' they were also providing catering services. However, they split the charges received for the services rendered into two parts - one towards ‘hall charges' for the temporary usage of the banquet hall for conducting the functions and the other for supply of food. They discharged service tax liability on the ‘hall charges' collected from the customers. However, they did not pay service tax on the food charges collected. It was their contention that, as regards supply of food, the transaction is one of sale, and therefore, no service tax is leviable. They also claimed that food is exempt from sales tax.

Two show cause notices were issued for the period 2005-06 to 2009-10 and 01/04/2010 to 30/09/2011 demanding ST of Rs.1.11crores and Rs.44.15 lakhs respectively.

Suffice to mention that in the final order, the Bench had concluded that in the case of Mandap Keeper Services, catering service is incidental and ancillary and, therefore, the charges for catering services would be includable in the taxable value of Mandap keeper Services.

In the matter of the first demand notice demanding ST of Rs.1.11crores, the Bench had in its final order observed thus -

5.5 As regards the contention of the appellant with regard to time bar, there is some merit in this argument. The show-cause notice dated 15.11.2010 seeks to demand Service Tax for the period 1.4.2005 onwards i.e. even beyond the extended period of 5 years . Therefore, the demand for the period 1.4.2005 to 30.9.2005 falls outside the extended period and confirmation of Service Tax demand in respect of this period cannot be legally sustained and, we hold accordingly.

Revenue is not happy with this portion of the order and has, as mentioned, filed an application for rectification of the mistake.

It is submitted that the ST-3 returns for the period of April 2005 to September 2005 & October 2005 to March 2006 were filed by the appellant, M/s Hotel Amarjeet Pvt. Ltd. on 28/03/2007 and, therefore, the show cause notice issued on 15/11/2010 covering the period 01/04/2005 onwards is within the period of five years from the date of filing the return.

Inasmuch as the mistake in this regard in the impugned order of the Tribunal may be rectified, submitted the AR.

The Bench observed -

"2. We have gone through the impugned order and it is seen that neither in the show cause notice nor in the impugned order the fact of filing of the return by the appellant on 28/03/2007 has been recorded anywhere. Therefore, we requested the Ld. A.R appearing for the Revenue to show us in which part of the order appealed against, this fact has been recorded or in which part of the show cause notice this fact is recorded. The ld. A.R fairly conceded that the fact of the ST-3 return having been filed on 28/03/2007 is neither mentioned in the order nor in the show cause notice. If that be so, Revenue can not allege that this Tribunal has committed an error. Thus, this ground mentioned in the application of the rectification of the mistake is a new ground, which cannot be considered at this stage…."

Holding that there is no merit in the ROM application filed by the Revenue, the same was dismissed.

In passing: Perhaps, this is not the end of the story…

(See 2015-TIOL-199-CESTAT-MUM)