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TMI Blog2009 (7) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellants had actually rendered 'Convention Services' figuring under section 65, clause (105)(zc) of the Finance Act, 1994 (the Act). While discharging the service tax, the appellant had excluded value attributable to food items supplied to customers of 'convention service'. Notification No. 12/2003-ST, dated 20-6-2003 granted exemption (sic) from tax relatable to value of food only with effect from 1-7-2003. Therefore a total of Rs. 1,50,860 was short paid by the appellant on 'convention service' rendered during the material period. The impugned order also demanded applicable interest for delay in payment of service tax and imposed equal amount of penalty under section 78 of the Act as well as penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imposed on them nor could the demand confirmed invoking the longer period. 3. We heard both sides. During the hearing, the learned Counsel for the appellants reiterated the various grounds raised in the appeal and also furnished a copy of the decision of the Tribunal in the case of Sky Gourmet (P.) Ltd. v. CST [2009] 22 STT 422 (Bang. - CESTAT) wherein it was held that the appellants therein were entitled to exclude the cost of the food, beverages, etc. from the taxable value of 'Outdoor Catering Service' rendered by them. It was held that the appellants were entitled to exemption extended under Notification No. 12/2003-ST. The Tribunal analysed the relevant constitutional provisions and observed as follows :- ". . . .As regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.' It is very clear from the article 366(29A) that a tax on the supply of goods being food or any article for human consumption where such supply of service, is for cash, deferred payment and other valuable services and that supply of any goods shall be deemed to be a sale. We also noted that the decision of the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. (supra). It is very clear that article 366(29A) specifically provides a legal fiction in respect of catering contracts where the contracts can be divisible into two components, i.e., service portion and sale of goods portion. As far as the sale of goods portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l interpretation must be given to taxing entries, this would not bring within its purview a tax on subject-matter which a fair reading of the entry does not cover. If in substance, the statute is not referable to a field given to the State, the Court will not by any principle of interpretation allow a statute not covered by it to intrude upon this field." (p. 266) We are fortified in our above finding by the following observations of the Hon'ble Apex Court in the case of Imagic Creative (P.) Ltd. (supra) :- "Payments of service tax as also the VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract as co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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