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Madap-keeper service — Valuation — Parking charges collected from clients includible — Section 65(105)(m) of the Finance Act, 1994 — Suppression of facts — Extended period of limitation can be invoked — Penalty — Option of 25% of penalty within 30 days to be provided.
Facts:
The appellants were providing services of mandapkeeper and paid service tax for the said activity. They also had parking space for which they charged separately from by their clients who enjoyed the services of mandap. A service tax was demanded on the charges for the said parking charges along with interest and penalties.
The appellants contended that they issued separate invoices for the charges and the same was reflected in their balance sheet separately. Also, the major portion of the demand was time-barred. Relying on the judgment in the case of Merwara Estates v. CCE, Jaipur 2009 (16) STR 268 (Tri.-Delhi), the appellants submitted that the penalties are not to be imposed in cases involving interpretation. Further, extended period of limitation was not invocable as suppression could not be alleged on the basis of balance sheet. The appellants relied on the judgment in the case of Martin & Harris Laboratories Ltd. v. CCE, Gurgaon 2005 (185) ELT 421 (Tri.-Delhi). The respondents submitted that without the parking space the mandap could not have been enjoyed by the clients and the car parking charges were not being collected from the persons parking their cars.
Held:
Taking into consideration the definition of ‘Mandapkeeper services’ u/s.65(105)(m) of the Act and the nature of services provided by the appellants, it was held that the services of car parking was in relation to use of the mandap as the car parking was a necessary facility for the use of mandap. The fact of separate collection of car parking charges was not coming clearly in the balance sheet. Extended period of limitation was held invokable as the appellants suppressed the facts from the Department. As regards penalty, it was observed that the appellants were not granted the option of paying 25% of the penalty within 30 days of the order of adjudication as held in the case of K. P. Pouches (P) Ltd. v. UOI, 2008 (228) ELT 331. Also, penalty once imposed u/s.78, penalty u/s.76 is not maintainable. Accordingly, demand of service tax was confirmed along with interest. As regards penalty, an option to pay 25% of the penalty within 30 days of the communication of this order was granted to the appellants.
