TMI Blog2019 (4) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant charged separately for hall rent and for food in the invoices. They paid service tax on full amount charged for hall rent, but, did not pay service tax on food charges collected from the client and shown separately on the invoices being VAT paid thereon. Therefore, they took deduction on account of Notification No. 12/2003-ST dated 20.06.2003 and it has shown in the ST-3 Returns. Therefore, he has not liable to pay service tax in the light of the decision in the case of Despalla Hotels Ltd. vs. CCE reported in 2010 (18) STR 75 (T), Cerebral Learning Solutions Pvt. Ltd. vs. CCE-2013 (32) STR 379 (T) and Sky Gourmet Pvt. Ltd. vs. CST, Bangalore 2009 (14) STR 777 (T). He also submits that in terms of Section 65B (44) of the Finance Act, 1994, the appellant is not liable to pay service tax on supply of foods. Therefore, the demand on account of now payment of service tax is not sustainable. 4. With regard to cenvat credit, it is his submission that the appellant took the cenvat credit during the period October 2006 to September 2010 and shown the same in their ST-3 Returns. During that period, no objection was raised and nor any discrepancy was pointed out. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that once the sale tax had already been discharged on food, beverages, etc. the appellants could not be required to pay service tax on the same value, the impugned demand of service tax is not sustainable in law. We find that the appellants have rightly relied on the judgment of the Hon ble Apex Court in BSNL v. Union of India [ 2006 (2) S.T.R. 161 (S.C.)] wherein the Court had held as follows :- 82. For the same reason the Centre cannot include the value of the SIM cards, if they are found ultimately to be goods, in the cost of the service. As was held by us in Gujarat Ambuja Cements Ltd. v. Union of India (2005) 4 SCC 214, 228. This mutual exclusivity which has been reflected in Article 246(1) means that taxing entries must be construed so as to maintain exclusivity. Although generally speaking, liberal interpretation must be given to taxing entries, this would not bring within its purview a tax on subject matter which a fair reading of the entry does not cover. If in substance, the statute is not referable to a field given to the State, the Court will not by any principle of interpretation allow a statute not covered by it to intrude upon this field. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) the functions performed by the Members of Parliament, Members of State Legislative, Members of Panchayats, Members of Municipalities and Members of other local authorities who receive any consideration in performing the functions of that office as such member; or (B) the duties performed by any person who holds any post in pursuance of the provisions of the Constitution in that capacity; or (C) the duties performed by any person as a Chairperson or a Member or a Director in a body established by the Central Government or State Governments or local authority and who is not deemed as an employee before the commencement of this section. Explanation 2. - For the purposes of this clause, the expression transaction in money or actionable claim shall not include any activity relating to use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged; Explanation 3. - For the purposes of this Chapter,- (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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