Central Excise Appeal No. 204 of 2014. Case: Dukes Retreat Ltd. Vs Commissioner of Central Excise, Pune-I. High Court of Bombay (India)
| Case Number | Central Excise Appeal No. 204 of 2014 |
| Counsel | For Appellant: Shri Prakash Shah with Jas Sanghavi i/b. M/s. PDS Legal, Advs. and For Respondent: Shri Pradeep S. Jetly with Ms. Anamika Malhotra, Advs. |
| Judges | S.C. Dharmadhikari and B.P. Colabawalla, JJ. |
| Issue | Finance Act, 1994 - Sections 67, 86 |
| Citation | 2015 (40) STR 871 (Bom) |
| Judgement Date | October 12, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
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We have heard both sides and we have perused the order passed by the Tribunal dated 2nd May, 2014 [2014 (36) S.T.R. 568 (Tri.-Mum.)].
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The Tribunal has dismissed the appeal of the assessee before us on the ground that the assessee did not produce the relevant and necessary evidence. The reference to that evidence is made in paras 5 and 6 of the Tribunal''s order.
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Mr. Shah appearing in support of this appeal would submit that the demand is raised on the footing that the appellant provided Mandap Keeper service. The understanding of the Revenue is fallacious because the Appellant runs a resort. Those interested in organising a function or booking a banquet hall, essentially book rooms and the banquet hall so also other facilities for hosting the functions and organising it are incidental. Therefore, [in earlier cases, the Deputy Commissioner of Central Excise] has held that room rent is not taken into consideration towards Mandap Keeper Service.
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In identical circumstances, [the Deputy Commissioner of Central Excise] held in favour of the Assessee but the Tribunal this time not providing an opportunity to the Appellant to produce evidence in the form of the Chartered Accountant''s certificate or otherwise, the Assessee was not in a position to satisfy the Revenue that the present case is similar, is the submission of Mr. Shah.
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Mr. Jetly, on the other hand, submits that pure findings of fact and on the footing that there is lack of evidence have been rendered and these findings do not raise any substantial question of law. The appeal is devoid of merits and therefore must be dismissed.
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We have perused the impugned order of the Tribunal. The Tribunal had before it an appeal of the assessee challenging the order of the adjudicating authority confirming the demand of Service Tax. The Tribunal was aware of the contentions raised and particularly that in similar cases, [the Deputy Commissioner of Central Excise] had taken a view in favour of the assessee. The Tribunal also had the contrary contention of the Revenue and which is to the effect that the assessee has not produced any evidence regarding quantum of room rent by way of producing bills, etc.
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If the Tribunal was of the opinion that such an evidence has not been produced before the adjudicating authority, but a request was made to allow production thereof, then, either the Tribunal should have allowed the production of such evidence, which is material and relevant...
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