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2022 (2) TMI 140 - CESTAT NEW DELHITaxability/non-taxability - business of sale of packed food and beverages on board the trains run by Indian Railways besides sale of packed food items/beverages at stalls at railway stations - unjust enrichment - applicability of the ruling of Hon‘ble Delhi High Court in INDIAN RAILWAYS CATERING AND TOURISM CORPORATION LTD. VERSUS GOVT OF NCT OF DELHI AND ORS [2010 (7) TMI 989 - DELHI HIGH COURT] - HELD THAT:- In the case of IRCTC they were supplying food under contract to the railways through their agent or sub-contractors, for which they were being paid by the Indian railways. Further Indian railways are paying to IRCTC out of the consolidated ticket value collected by them from the passengers which does not contain any breakup of the amount towards travel charges and food charges. Whereas in the facts of the present case, the appellant is a licensed vendor who were entitled to sell food on the trains and at the stations. The assessee is paying license fee to the railways for such entitlement to sell such packed food and are further paying service tax separately on the license fee. The staff or hawkers of the respondent assesee move in the trains or at the station offering food for sale to the passengers. The passengers are under no obligation to buy food from the respondent. Thus, it is found that the transaction between the respondent assessee and the passenger who purchases the food is a simple sale transaction of food involving no element of service. In the present case, there is no element of service involved in the sale of food by the respondent assessee to the passengers. Further, it is found that the law has been clarified and declared by Hon‘ble Delhi High Court in the case of IRCTC and accordingly, the respondent assessee is rightly entitled the refund of the service tax paid under erroneous advice, subject to passing the test of unjust enrichment. The pendency of appeals of the service tax department as well as M/S INDIAN RAILWAYS CATE. & TOUR. CORP. LTD. VERSUS GOVT. OF NCT OF DELHI & ORS. [2011 (10) TMI 762 - SC ORDER] before Hon‘ble Supreme Court have got no bearing in the facts and circumstances of the present case. In the facts of the present case, no machinery provision was also there for bifurcation of the transaction into service portion and sale portion, for levy of service tax. Rule 2C was introduced in the Service Tax Determination of Valuation Rules, 2006 with effect from 1 July, 2012 vide Notification No. 24/2012-ST, which has provided for mode of bifurcation by allowing abatement for the sale portion in the case of service of food in a restaurant or in the course of outdoor catering. Even under Rule 2C, the activity of the respondent assessee is not covered. Commissioner (Appeals) have without examining the issue of unjust enrichment and without giving proper opportunity of hearing and to lead evidence on the issue of unjust enrichment, have simply made a bald allegation that the assessee did not lead evidence before him, by a non-speaking order. He also did not indicate if the assessments have been modified - the respondent assessee is also directed to appear before the Commissioner (Appeals) within a period of 60 days from the date of receipt of copy of this order along with evidence as regards unjust enrichment and evidence regarding assessments being modified in appeal and seek opportunity of hearing. The appeal is allowed by way of remand.
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