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2019 (2) TMI 876 - AT - Service TaxValuation - Outdoor catering services - inclusion of cost of the newspapers as also the value of the packed items sold by the appellant on the printed MRP in assessable value - benefit of abatement under N/N. 1/2006-ST. - time limitation. Held that:- There is no dispute about the factual position. The adjudicating authority has not rebutted the above factual and contractual contents of the agreement entered into between the appellant and the Railways. The appellants are not making any money from the supply of the said newspapers to the passengers from whom the Railways have already retrieved the cost at the time of supply of the ticket - further, in any case and in any view of the matter the supply of newspapers is not covered by the definition of ‘outdoor caterers’ is given in Section 65(76a) of the Finance Act. Newspapers supplied by the appellant on behalf of the railways can by no stretch of imagination, be considered to be in the same line of food or food articles - the cost of the newspapers cannot form part of value of ‘catering services’. Inclusion of sale of packed confectionary items to the passengers - Held that:- The issue is no more res integra and an identical issue was considered by the Tribunal in the case of LSG Shyshape Chegs (P) Ltd. v. CST [2009 (1) TMI 120 - CESTAT BANGALORE] as also in the case of Imagic Creative Pvt.Ltd. v. Commissioner of Commercial Taxes [2008 (1) TMI 2 - SUPREME COURT OF INDIA], wherein it was held that when assessee was paying Sales Tax on portion of value of the contract than simultaneously Service Tax could not be demanded from it as they are mutually exclusive - The Commissioner has not denied the fact that the readymade packed items sold by the appellant has already discharged the VAT element. If that be so, the confirmation of Service Tax against the same by including the cost of the same in the value of the ‘catering services’ is unsustainable. Benefit of Notification No.1/2006-ST dated 01.03.2006 - Held that:- As it is already held that the providing of newspapaers as a pure agent of railways and the sale of the packed foods on payment of VAT would not attract the Service Tax, the fact of non-inclusion of the said values in the invoices/bills raised by the appellant cannot be adopted as a ground leading to violation of condition of Notification. The appellants have correctly availed the benefit of the Notification in question. Time limitation - Held that:- The demand is hopelessly barred by limitation. The Revenue has not adduced any evidence of any willful suppression or misstatement on the part of the assessee so as to justifiably invoke the longer period. Admittedly the issues are complicated interpretational issues and cannot reflect upon any mala fide on the part of theappellant. The demand is accordingly hit by the bar of limitation having been raised beyond the normal period. Appeal allowed - decided in favor of appellant.
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