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2022 (5) TMI 481 - CESTAT AHMEDABADNon-payment of service tax - Business Auxiliary Service or not - services of supply of bedroll kits to the passengers of train on behalf of IRCTC - outdoor catering services on the sale of breakfast, meals, package foods items and beverages in the trains - period from 01.03.2006 to 31.03.2008. Supply of bed rolls under the head ‘business auxiliary services’ - HELD THAT:- The facts, is not disputed in the present matter that Appellant has supplied bedroll kits to passengers of Air-Conditioned class and other classes on behalf of IRCTC. As per the contract with IRCTC, the Appellant has to compulsorily provide the bedroll kit to passengers on demand. For the said services a monthly bill was raised by the appellant to IRCTC, the appellant for the said services needs not to charge the passengers. The services have been rendered by the appellant to the passengers on behalf of IRCTC. The said services rendered by Appellant for an on behalf of IRCTC to passengers in the nature of a ‘customer care service’ - such services appropriately classifiable under business auxiliary services under the category of “Customer care services provided on behalf of the client under Section 65(11) of the Finance Act, 1994”. Penalty u/s 76 and 78 of FA - HELD THAT:- This is not the case where the issue was under litigation or there is any interpretation of law involved for the reason that all the judgments relied upon by the appellant are on different facts and accordingly the demand of extended period is sustainable - As regard penalty imposed under Section 76 and 78, simultaneous penalty under Section 76 and 78 cannot be imposed. Therefore, the penalty imposed under Section 76 is set aside. Other penalties and interests to the extent demand was sustained is also sustainable. Outdoor catering services - HELD THAT:- Various facts has not been examined in the impugned order by the Ld. Adjudicating authority - the impugned order as regard the said issue is set aside and matter is remanded to the adjudicating authority to consider aforesaid aspects and pass a fresh order, after following the Principle of Natural Justice such as considering the submissions made/to be made by both the parties and granting the sufficient Personal hearing. Appeal allowed in part and part matter on remand.
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