ORDER
Jyoti Balasundaram, Vice-President
1. The applications for waiver of pre-deposit of service tax of Rs. 4,55,985/- (Rupees four lakhs fifty-five thousand nine hundred eighty-five only) for the period July 1998 to March 1999 and Rs. 2,88,789/- (Rupees two lakhs eighty-eight thousand seven hundred eighty-nine only) for the period April to September 1999 and penalties of Rs. 10,000/- (Rupees ten thousand only) and Rs. 8,000/- (Rupees eight thousand only) respectively, arise out of a common order of the Commissioner of Central Excise (Appeals), Pune, who has upheld the adjudication orders passed by the Deputy Commissioner of Central Excise, confirming service tax on the ground that the applicants who are running a holiday resort/ retreat at Khandala, were providing service as “mandap keepers” as they were also allowing customers availing of facilities such as boarding and lodging and use of recreation facilities, use of conference hall, free of charge (the applicants were charging their customers only for the stay and food/drink as part of a package).
2. We have heard both sides.
3. We find that the applicants’ claim for 40% rebate in terms of notification 21/97-S.T., dated 26-6-1997, was accepted by the Deputy Commissioner for the period July 1997 to June 1998 by separate order dated 28-2-2004, who levied service tax only on the remaining 60% of the gross amount. This formula has become final, as the Revenue has not challenged this order. The applicants have already paid the service tax amount on application of this formula. We, therefore, hold that a prima facie case for waiver of service tax and penalty has been made out and hence waive the pre-deposit and stay recovery thereof pending the appeals.
(Pronounced in Court)