M/S Jacksons Hotels Pvt. Ltd. vs. Cgst C.C And C.E. Jabalpur

The High Court Of Madhya Pradesh CEA-88-2018 (M/S JACKSONS HOTELS PVT. LTD. Vs CGST C.C AND C.E. JABALPUR) Jabalpur, Dated : 14-02-2020 Mr. Mukesh Agrawal, Advocate for the appellant. Heard on I.A. No.2485/2020 - application seeking withdrawal of the present appeal. The appellant-assessee has filed the present appeal wherein the following substantial questions of law have been claimed:- "(i) Whether in facts & circumstances of present case impugned order passed by Customs, Excise & Service Tax Appellate Tribunal at New Delhi (CESTAT), is erroneous, unjust, incorrect and unsustainable in law & fact? (ii) Whether the CESTAT justified in not taking into consideration the law laid down by the Hon'ble Apex Court in the case of Safety Retreading reported in (2017) 3 SCC 640, whereby Hon'ble Apex Court held that Service Tax could only be charged on service component and benefit of Notification no. 12/2003 could not be deprived? (iii) Whether in facts & circumstances of the present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that appellant is not entitled to claim benefit of exemption under Notification No. 12/03-ST even if appellant has satisfied all the condition of the notification? (iv) Whether in facts & circumstances of the present case Customs, Excise & Service Tax Appellate Tribunal, New Delhi has correctly held that a Mandap Keeper, in whose case there is separate invoices for sale value of food and beverages and for the value of the services provided, still cannot claim the benefit of exemption under cannot be treated as sale for the purposes of the exemption notification? a) Whether in facts & circumstances of the present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that a Mandap Keeper, in whose case there is separate invoices for sale value of food and beverages and for the value of the services provided, still cannot claim the benefit of exemption under cannot be treated as sale within meaning of Section 2(h) of Central Excise Act, 1944?

CEA-88-2018 MISHRA Date: 19/02/2020 14:58:16 b) Whether in facts & circumstances of the present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that a Mandap Keeper, in whose case there is separate invoices for sale value of food and beverages and for the value of the services provided, still cannot claim the benefit of exemption under cannot be treated as sale within meaning of Article 366 (29A) as deemed sale? c) Whether in facts & circumstances of the present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that a Mandap Keeper, in whose case there is separate invoices for sale value of food and beverages and for the value of the services provided, still cannot claim the benefit of exemption under cannot be treated as sale simplicitor? d) Whether in facts & circumstances of the present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that a Mandap Keeper, in whose case there is separate invoices for sale value of food and beverages and for the value of the services provided, food and beverages served to the guests of the customer while using mandap is consumed by them without transfer of possession of food and beverage by the mandap keeper to his customer for some consideration? (v) Whether in facts & circumstances of present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly applied pre-dominant nature test ignoring the fact that (i) present transaction is deemed sales within meaning of Article 366(29A) and/or (ii) transaction in question was not a composite transaction involving both sale and service as contended by the department & appellant has been raising separate invoices for sale value of food and beverages and for the value of the services provided? a ) Whether in facts & circumstances of present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that even though appellant is charging specified amount for serving food & beverage to the guest of it's customer (ignoring the fact that the transaction in question was not a composite transaction involving both sale and service as contended by the department & appellant has been raising separate invoices for sale value of food and beverages and for value of the services provided), that does not become sale of food & beverages as the intention of the contract is providing service, incidentally involving serving of food and drinks to the guest of the customer & the price charged for serving food and drinks form part of the consideration of the Mandap Keeper service but not the price for sale of food & drinks? 2 CEA-88-2018 MISHRA Date: 19/02/2020 14:58:16 b ) Whether in facts & circumstances of present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that dominant nature in present transaction is provision of Mandap Keeper Service & sale & supply of food & beverages in merely incidental to provision of service and/or in course of providing the Mandap Keeper Service? ( v i ) Whether in facts & circumstances of present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that present appellant, in whose case there is separate invoices for sale value of food and beverages and for the value of the services provided, has not produced evidence establishing sale of food & beverages in the sense that there is transfer of possession of food and beverages for price? (vii) Whether in facts & circumstances of present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that in case of present appellant, in whose case there is separate invoices for sale value of food and beverages and for the value of the services provided, service tax can be charged on the gross amount charged for providing service including the value of the goods ignoring the principle of mutual exclusivity of service tax & sales tax? (viii) Whether in facts & circumstances of present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly held that judgment of Bangalore Bench of Appellate Tribunal in Sky Gourmet Pvt Ltd is per incurium? ( i x) Whether in facts & circumstances of present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly ignored binding precedent in terms of judgment of Bangalore Bench of Appellate Tribunal in case of Sky Gourmet Pvt Ltd & Daspalla Hotels Ltd v. CCCE 2010 (18) STR 75(T)? ( x ) Whether in facts & circumstances of present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly upheld demand of interest from present appellant? ( xi ) Whether in facts & circumstances of present case Customs, Excise & Service Tax Appellate Tribunal at New Delhi has correctly upheld imposition of penalty under Section 76 upon present appellant? ( x i i ) Whether in facts & circumstances of present case, the CESTAT is correct in disposing the appeals without deciding the same on the grounds that appeal for the previous period is pending before this Hon'ble Court? ( x i i i ) Whether in facts & circumstances of present case, the CESTAT is correct in disposing the appeals without considering the provisions of sec. 86(7) of the Finance Act, 1994 read with sec. 35C 3 CEA-88-2018 MISHRA Date: 19/02/2020 14:58:16 (AJAY KUMAR MITTAL) CHIEF JUSTICE (VIJAY KUMAR SHUKLA) JUDGE of the Central Excise Act, 1944?" Learned counsel for the appellant submitted that under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, the duty imposed upon the appellant could be compounded. Accordingly, it was stated that the appellant intends to approach the competent authority thereunder and prayed for withdrawal of the appeal. In view of the aforesaid, I.A. No.2485/2020 is allowed. Accordingly, the present appeal is dismissed as withdrawn with liberty as prayed for. It shall be open for the appellant to file an appropriate application before the competent authority under the aforesaid scheme for compounding the tax imposed, which shall be considered and decided in accordance with law by passing a reasoned and speaking order. Needless to mention that the appellant may make an application for revival of the appeal in case the grievance survives after the order is passed by the respondent. psm

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