THE COMMISSIONER OF CENTRAL EXCISE Vs. AVENUE REGENT

JUDGEMENT

(1.) THIS appeal is filed by the revenue against the impugned Order -in -appeal No. 127/2008 -ST dated 23/31 -7 -2008.

(2.) THE relevant facts that arise for consideration are the respondents herein are providing service of Mandap keeper services and Health & Fitness Centre service. Investigation conducted by the department revealed that respondent suppressed the fact of providing convention service with intent to evade service tax, though they were paying service tax under the category of Mandap keeper service but stopped paying such service tax from 1.1.2002 to 8.7.2004. Scrutiny of the records indicated that the respondents had been availing exemption under Notification No. 12/01 dated 20.12.2001 which exempts taxable service provided by a hotel as a mandap keeper and allows the deduction of the said amount from the gross value. It was noticed by the lower authorities that functions which were held in the appellants convention centre were by the business organizations and get directly classified under convention services. Coming to such a conclusion show cause notice dated 21.3.2007, was issued demanding service tax amount of Rs. 6,77,797/ - under the category of convention service and for imposition of penalty and recovery of interest. The adjudicating authority after considering the submissions made by the respondent rejected the claim of limitation and held that the services are classifiable under convention service and hence confirmed the demand of duty. Aggrieved by such a OIO, the assessee preferred an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide impugned order set aside the OIO and allowed the appeal of the respondent herein.

(3.) LEARNED Counsel appearing on behalf of the respondent submits that the impugned order is correct and the statements made by the revenue in the grounds of appeal are incorrect statements. It is his submission that the services provided by the appellant are taxable only under the head Mandap Keeper service and not under the head 'convention services'. It was the submission that Mandap keeper services and convention services overlapped each other and the differences are subtle. It is his submission that if the services cannot be classified on the basis of specific description or essential characteristic it should be classified under sub -clause which appears first in Section 65(105) of the Finance Act 1994. It was submitted that the exemption Notification No. 12/01 dated 20.12.01 cannot be taken away by Circular issued by the Board.