Voltas Ltd vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appln.No.ST/CO/18/10 APPEAL No.ST/147/09

(Arising out of Order-in-Appeal No.KKS (26)26/STC/2009 dated 30/03/2009 passed by Commissioner of Central Excise (Appeals), Mumbai)

For approval and signature:

Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Voltas Ltd., Appellant Vs. Commissioner of Central Excise, Respondent Mumbai

Commissioner of Central Excise, Respondent Mumbai Vs. Voltas Ltd., Appellant Appearance: Shri.S.S.Gupta, CA for appellant Shri.S.V.Nair, Asst. Comm. (AR) for respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.R.Chandrasekharan, Member (Technical)

Date of Hearing : 15/01/2015 Date of Decision : 15/01/2015

ORDER NO

Per: M.V. Ravindran

1. This appeal is directed against Order-in-Appeal No.KKS (26)26/STC/2009 dated 30/03/2009.

2. Heard both sides and perused the records.

3. The issue involved in this case is regarding confirmation of demand of service tax liability on the appellant for the period July 2001 to September 2003 under the category of convention services. It is the case of the Revenue that the appellant had during this period misclassified the services rendered by them under the category of mandap keeper and availed ineligible benefit of abatement of 40% of the gross value of the amounts received from the service recipient.

4. Learned Chartered Accountant after taking us through the show-cause notice and the impugned order as well as the order-in-original would submit that the appellants were discharging the service tax liability under the category of mandap keeper. Subsequently a new entry was brought into the statue in the form of convention centre services with effect from 16/07/2001 that the appellant had in fact indicated to the audit party that they were using HRD Centre mainly for their own function and also provide the said facility to outsiders for conducting the meeting, functions, etc., the said activity would fall strictly under the category of mandap keeper and not under the category of convention centre services. He relied upon the decision of the Tribunal in the case of Taj View Hotel Vs. CCE, Kanpur  2014 (7) TMI 160  CESTAT New Delhi, CCE, Cochin Vs. Casino Hotel  2010 (19) STR 425 (Tri-Bang) and CCE, Cochin Vs. Avenue Regent  2010 (17) STR 284 (Tri-Bang) to submit that these case laws support his view.

5. Ld. DR would reiterate the findings of the first appellate authority and also submit that the appellants are not eligible for the benefit of 40% abatement under Notification No.21/1997.

6. In the rejoinder, the learned CA would submit that the show-cause notice is invoking the extended period and the period from July 2001 to March 2003 is hid limitation as the appellant had always informing the department about the availment of abatement under Notification No.21/97-ST.

7. After considering the submissions made by both the sides and perusal of records, we find that the dispute herein is regarding the whether the services rendered by the appellant would fall under the convention centre services or mandap keeper services for the period post 16/07/2001.

8. We would like to record that post 16/07/2001 , the new entry of the convention centre service was introduced which in our view covered by the services rendered by the appellant. At the same time it also noted that the appellant had been discharging the service tax liability on the services rendered by them under the category of mandap keeper services after availing the abatement; which has been accepted by the department and no objections were raised. The appellant had considered the services rendered by them as mandap keeper services; on an assumption that services rendered by them can also get covered under the mandap keeper service. On perusal of the definition of Convention Centre Services, we are of the view that the said service which have been brought under the tax net from 16/07/2001 has an overlapping effect of covering the services of mandap keeper services. Be that as it may the tax liability for the period July 2001 to March 2003 seems to hit by limitation as the show-cause notice is issued on 04/06/2004. Our conclusion is based on the fact that the appellant had in his ST-3 returns indicated the availment of benefit of Notification No.21/97-ST.

9. As regards the tax liability for the period April 2001 to September 2003, we find that the said tax liability needs to be confirmed under the category of convention centre services. It is mentioned that the appellant had discharged the service tax liability, interest liability will arise on the appellant which needs to be upheld. As regards the penalty imposed by the adjudicating authority and upheld by the first appellate authority, it is to be noted that for the period July 2001 to September 2003, the appellant may have had a bonafide assumption that the services would fall under mandap keeper services, we set aside the demand on the ground of limitation; hence, no penalty would arise on the portion of confirmed demand. As regards the demands confirmed, within the period of limitation, as we have held that the issue involved is an interpretation of classification and benefit of notification No.21/97-ST, we hold that there is no reason that warrants, imposing the appellant with penalties. Upholding the tax liability for the period within limitation; and interest thereof, we set aside penalties imposed on appellants.

10. Appeal is disposed as indicated above. Cross objection filed by the department being in support of the first appellate authoritys order, is disposed of as such.

(Dictated in Court)

(P.R. Chandrasekharan) Member (Technical) (M.V. Ravindran) Member (Judicial)

pj

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