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2022 (4) TMI 427 - AT - Service TaxLevy of Service Tax - Outdoor Catering Services - It therefore appeared to the Department that Service Tax was paid only on the service portion and not on the entire gross value received by them - period from October 2005 to December 2010 - benefit of N/N. 01/2006-S.T. dated 01.03.2006. For the period prior to 01.04.2007 - HELD THAT:- The sole agreement of the appellant with M/s. Manali Petro Chemicals has been relied by the Department to hold that the appellant has been undertaking the activity of serving food prior to April 2007. As there is a separate agreement entered by the company with another person viz. M/s. Shanmugasundaram for serving the food, on the probability of facts, the argument put forward by the appellant that the activity of serving food was done by another contractor, appears to be more tenable and acceptable - demand do not sustain. For the period after 01.04.2007 - HELD THAT:- Admittedly, the appellant has been filing returns and paying Service Tax after 2007. The appellant has entered into two separate contracts and has been discharging Service Tax on the income received under the agreement for rendering the services. They have been paying Sales Tax / VAT on the amounts received for the supply of food. The case of the Department is that the value of these two contracts has to be clubbed together and after giving the abatement of 50% in terms of Notification No. 01/2006-S.T. dated 01.03.2006 the appellant has to discharge its Service Tax liability. The levy of Service Tax under Outdoor Catering Services would be attracted only if the activity involved serving of food and not mere sale of food. In COMMR. OF SERVICE TAX, PUNE-I VERSUS BINDRAS HOSPITALITY SERVICE PVT. LTD. [2019 (3) TMI 1854 - CESTAT MUMBAI] it was held that sale of cooked food to the employees at the counters would not be taxable under Outdoor Catering Services. When the value of food items have already been subjected to Sales Tax / VAT, we do not think that it is correct to levy Service Tax on the said amount again. The Tribunal in the case of M/S. GOLDLINE HOSPITALITY SOLUTIONS (P) LTD. VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE, CHENNAI SOUTH COMMISSIONERATE [2019 (1) TMI 1309 - CESTAT CHENNAI] had occasion to consider a similar issue. After taking note of various decisions on similar issues, the Tribunal held that when Sales Tax / VAT has been discharged on the value of food items, the demand of Service Tax cannot be raised again by clubbing such value along with the service charges. The demand cannot sustain - Appeal allowed - decided in favor of appellant.
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