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2024 (3) TMI 283 - AT - Service TaxLevy of service tax - Catering services - declared service or not - supply of meals and other food items by the respondent to the airlines - SCN dated 15.02.2017 for the period is from 01.07.2012 to March 2016 - HELD THAT:- It would be seen that section 65B (44) defines ‘service’ to mean any activity carried out by a person for consideration, and includes a declared service, but shall not include, amongst others, an activity which constitutes merely such transfer, delivery or supply of any goods which would be deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution - Section 65B (51) of the Finance Act defines ‘a taxable service’ to mean any service on which service tax is leviable under section 66B. Though the notification dated 20.06.2003 was rescinded on the introduction of the negative list regime, but the legal position would not change in view of the definition of ‘service’ under section 65B(44) of the Finance Act and the provisions of article 366(29A) of the Constitution. This is also clear from the Education Guide issued by CBEC on 19.06.2012. Paragraph 2.6.4 clarifies the reason for deletion of the notification dated 20.06.2003. It would also be pertinent to refer to the decision of the Tribunal in HALDIRAM MARKETING PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS AND SERVICE TAX, GST DELHI EAST COMMISSIONERATE, NEW DELHI [2023 (2) TMI 783 - CESTAT NEW DELHI]. The Division Bench held that activities of preparation of food items by engaging chefs, packaging and delivery and selling them as take-away food items over the counters would amount to sale and, therefore, not be leviable to service tax. In INDIAN RAILWAYS CATERING & TOURISM CORPORATION LTD VERSUS GOVT OF NCT OF DELHI & ORS [2010 (7) TMI 174 - HIGH COURT OF DELHI], the Delhi High Court examined whether service tax could be leviable on foods and beverages supplied on board the trains and it was held that the transaction between the petitioner-company and Indian Railways for providing food and beverages to the passengers, on board the trains, is a transaction of sale of goods by the petitioner-company to Indian Railways. It is neither a contract for providing services nor a composite contract for supply of goods and providing of services. In the present case also, the respondent supplies foods to the airlines. The food is loaded in the aircraft at the airport but the respondent does not provide any catering service, which in fact is provided by the airline crew - service tax would not be leivable on the supply of food items to the airlines. The impugned order dated 31.01.2018 passed by the Commissioner, therefore, does not call for any interference in this appeal - appeal dismissed.
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