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2022 (3) TMI 329 - AT - Service TaxNature of activity - sale or service - packed food which is sold as take away either on the counter of the restaurant or through delivery boys to the customer’s place, and not served in the restaurant - HELD THAT:- The appellant have been discharging the service tax in respect of food served in the restaurant to their customers. However, they are not paying service tax in respect of packed food which is sold as take away either on the counter of the restaurant or through delivery boys to the customer’s place. In this undisputed fact, the food is not served in the hotel whereas the same is sold in the packed form therefore, as per the nature of this activity, it is clearly a sale of food, no service is involved. This issue is no longer res-integra as the same has been considered by the Hon’ble Madras High Court in ANJAPPAR CHETTINAD A/C RESTAURANT, M/S RSM FOODS (P) LTD, M/S. THALAPAKATTI HOTELS PVT. LTD, M/S PRASANAM FOODS (P) LTD. VERSUS JOINT COMMISSIONER, THE COMMISSIONER OF GST AND CENTRAL EXCISE, THE ADDITIONAL COMMISIONER OF GST AND CENTRAL EXCISE [2021 (6) TMI 226 - MADRAS HIGH COURT] where it was held that the provision of food and drink to be taken-away in parcels by restaurants tantamount to the sale of food and drink and does not attract service tax under the Act. Thus, it is observed that the fact of the above case is absolutely identical to the facts of the present case inasmuch as the food in packed form is sold either on the counter or through delivery boys to the customers’ place. Therefore, the activity is clearly of sale of food and no service is involved - appeal allowed - decided in favor of appellant.
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