TMI Blog2008 (4) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... (T) Shri G. Shivadas, Advocate, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. - This appeal and application for stay have been filed in respect of the Order-in-Original No. 87/2007 dated 12-9-2007 passed by the Commissioner of Service Tax, Bangalore. 2. In terms of the impugned order the appellants are required to pre-deposit the following amounts: (I) Rs. 58,04,581/- Service Tax demanded under Section 73(i) of the Finance Act 1994 for the period from 10-9-2004 to 31-3-2006, (II) Interest for the above amount under Section 75 of the Act, (III) Penalty of Rs. 200/- per day under Section 76, (IV) Penalty of Rs. 1000/- imposed for mis-declaration of value on tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduced vide 46th Amendment Act. It reads as follows : "366. (29-A) 'tax on the sale or purchase of goods' includes - (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration," 5. Subsequent to the above amendment of the Constitution, the definition of 'sale' has been incorporated with amendment which provides that supply of food as a part of any service would also amount to sale. Hence, the supply of the food by the appellant is subject matter of sales tax. As regards the amount received for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service has defined under the Act. Definition of out door caterer w.e.f. 16-6-2005 reads as follows: "Outdoor caterer" means a caterer engaged in providing services in connection with catering at a place other than his own but including a place provided by way of tenancy or otherwise by the person receiving such services. 5.3 The appellant is entitled to the benefit of Notification 12/2003-S.T. dated 20-6-2003 which provides for deduction of the value of the goods and materials sold. Reliance is placed also on the following decision : (a ) Ad Labs v. CCE, Bangalore reported in 2006 (2) S.T.R. 121 (Tri.- Bang.) (b) Shilpa Color Lab. v. CCE, Calicut - 2007 (5) S.T.R. 423 (Tri.-Bang.) 5.4 The miscellaneous expenses li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or suppression of facts with intent to evade service tax. Following case relied on : (a) M/s. Continental Foundation Joint Venture Holding, Nathpa H.P. v. Commissioner of Central Excise, Chandigarh-I - 2007 (216) E.L.T. 177 (S.C.) = 2007-TIOL-152-SC-CX. (b) CCE v. Chemphar Drugs Liniments reported in 1989 (40) E.L.T (S.C.) 5.8 When no Service tax is payable the question of interest under Section 75 and penalties under Section 76, 77 and 79 of the Act, does not arise. Section 80 provides that no penalty shall be imposable on the assessee for any failure if the assessee proves that there was reasonable cause of the said failure. Thus, the Act statutorily provides for waiver of the penalty. The following decisions are relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exemption Notification it is for the appellants to avail of it or not. When the actual cost of food and beverage is available, there is no need for paying service tax for the amounts received on account bf their sale especially when sales tax has also been paid. 9. On a very careful consideration of the entire issue, we find that the dispute involves amount the service tax liability on the amount received by way of sale of food and beverages to the Airlines. In view of the various decisions cited (supra) by the learned Advocate prima facie the case is in favour of the appellants. We also do not find that there is any suppression of facts to invoke the longer period. In view of this, we order waiver of pre-deposit of the entire tax d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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