Page 125 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] GATEWAY HOTELS v. COMMISSIONER OF CUSTOMS, C. EX. & S.T., COCHIN 211
Restaurant service - Whether ‘exempted service’ during the period
from 1-7-2012 to 31-3-2013 - No abatement availed in respect of restaurant ser-
vice - As per Rule 2C of Service Tax (Determination of Value) Rules, 2006, val-
ue of service portion involved in supply of food or any other article of human
consumption or any drink in a restaurant being fixed as 40% of the total value
on the condition that Cenvat credit on inputs not taken, the remaining portion
of the value would neither be considered as an abatement nor as an exemption
and accordingly restaurant service would not be covered under the definition
of input service and provisions of Rule 6 of Cenvat Credit Rules, 2004 not ap-
plicable. [para 6]
Demand - Limitation - Extended period - Appellants although availed
the total Cenvat credit of ` 23 lakhs (approx.) whereas vide the impugned or-
der, Commissioner demanding more than ` 80 lakhs which is more than the
total credit availed - Further, for the period April, 2008 to March, 2012, entire
demand is barred by limitation, show cause notice being issued on 21-10-2013
for the period April, 2008 to March, 2012 which is beyond the limitation period
of one year - Also, Extended period not invocable, law on the point when not
clear and definition of exempted service changed from time to time and inter-
pretational issue involved - Substantial demand for the period from April,
2008 to March, 2012 entirely time-barred - Rules 6 and 14 of Cenvat Credit
Rules, 2004. [para 6]
Appeals allowed
CASES CITED
Aster Pvt. Ltd. v. Commissioner — 2016 (43) S.T.R. 411 (Tribunal) — Referred............................ [Para 4.3]
Cranes & Structural Engineers v. Commissioner
— 2017 (347) E.L.T. 112 (Tribunal) — Referred ......................................................................... [Para 4.3]
Final Order No. 21118/2018, dated 8-8-2018 by CESTAT, Bangalore — Referred .................. [Paras 4.2, 6]
Kerala Classified Hotels and Resorts Association v. Union of India
— 2013 (31) S.T.R. 257 (Ker.) — Relied on ............................................................................ [Paras 4.2, 6]
State of HP v. Associated Hotels of India Ltd. — 2017 (50) S.T.R. 80 (S.C.)
= 2015 (330) E.L.T. 3 (S.C.) — Referred ...................................................................................... [Para 4.2]
Union of India v. Kerala Bar Hotels Association — 2014 (36) S.T.R. 1205 (Ker.) — Referred ...... [Para 4.2]
REPRESENTED BY : Shri Jose Jacob, Advocate, for the Appellant.
Shri V. Veerabhadra Reddy, AR, for the Respondent.
[Order per : S.S. Garg, Member (J)]. - The appellant has filed these two
appeals against the common Order-in-original dated 25-11-2014 passed by the
Commissioner of Central Excise, Thiruvananthapuram disposing two show
cause notices. The details of both the appeals are given hearinbelow :-

Particulars SCN No. 101/2013-ST SCN No. 65/2014-ST
(Commr), dated 21-10-2013 (ADC), dated 15-5-2014
Period of dispute April, 2008 to March, 2012 April, 2012 to March, 2013
Demand of Cenvat Rs. 69,76,592/- Rs. 10,80,673/-
Credit
Penalty Rs. 69,76,592/- u/s 78 Rs. 5,40,336/- u/s 76
Rs. 10,000/- u/s 77 Rs. 10,000/- u/s 77
Cenvat credit availed Rs. 9,90,458/- (approx) Rs. 13,05,882/-
Cenvat credit utilised Rs. 8,85,629/- (approx) Rs. 15,42,794/-
GST LAW TIMES  11th June 2020  125