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2019 (4) TMI 179 - AT - Service TaxDemand of service tax - amount of food charges collected from the clients and shown separately on the invoices as being VAT paid thereon - N/N. 12/2003-ST dated 20.06.2003 - case of the revenue is that as the appellant is providing ‘Mandap Keeper’s Service’ and ‘Catering Service’, therefore, they are liable to pay service tax on the full amount charged by them form the clients - Held that:- The appellant has charged hall rent separately on which service tax has been paid and also charged for supply of food on which VAT has been paid, therefore, in terms of N/N. 12/2003-ST dated 20.06.2003, the appellant is entitled to claim deduction on the value of the foods supplied. Admittedly, on full value of food supplied, the appellant has paid VAT, therefore, in terms of N/N. 12/2003-ST dated 20.06.2003, the appellant is entitled to claim deduction - the appellant are not liable to pay differential service tax as demanded in the impugned order on account of Catering Service which are sought to be included in the value of service on which the appellant has already paid VAT. In these circumstances, the demand on account of short payment of service tax is set-aside. As per Section 65B (44) (a) (ii), supply of goods which is deemed to be sale is excluded from payment of service tax. Admittedly, on the basis of the foods supplied by the appellant has paid VAT holding that the same is sale of food, therefore, in terms of Section 65B of Finance Act, 1994, the appellant is not liable to pay service tax on the value of foods supplied. CENVAT Credit - credit denied for want of documents - Rule 9 of the Cenvat Credit Rules, 2004 - Held that:- The appellant took cenvat credit during the period October 2006 and September 2010 and was filing statutory returns from time to time and periodical audit took place and no objection was raised for availment of cenvat credit. Therefore, the show cause notice issued to the appellant on 30.03.2012 for the period October 2006 to September 2010 is barred by limitation. As the fact of the availment of the cenvat credit was in the knowledge of the department. Therefore, the cenvat credit cannot be denied to the appellant. As extended period of limitation is not invokable and demand is not sustainable against the appellant. Therefore, no penalty is imposable on the appellant. Appeal allowed - decided in favor of appellant.
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