TMI Blog2011 (4) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... see - 105 & 106 OF 2009 - - - Dated:- 20-4-2011 - N. KUMAR AND RAVI MALIMATH, JJ. N.R. Bhaskar for the Appellant. M.S. Nagaraj for the Respondent. JUDGMENT Ravi Malimath, J. ‑ These two appeals are filed by the revenue being aggrieved by the common order passed by the Tribunal against the very same assessee holding that in an out door catering service the cost of goods supplied should be treated as sale of goods and it cannot be charged to service tax in view of the ratio of the Supreme Court in Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 STT 245. Since the assessee is the same and a common order has been passed by the Tribunal, both the appeals are disposed off by a common order. 2. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of sale of food, the element of service in connection with catering was only to the extent of handling and loading of food and beverages on the aircraft. Hence they had paid service tax to that extent. The assessing authority came to the conclusion that in terms of section 67 of the Act, the assessees are liable to pay service tax on the gross amount realised from the various Airlines on account of outdoor catering service provided by them. That section 67 clearly prescribes that the value of taxable service shall be the gross amount charged by the service provider. Further the exemption claimed by the assessee under Notification 12/2003 dated 20-6-2003 is legally unsustainable. Accordingly, the assessing authority confirmed the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal CEA No. 105/2007 was admitted to consider the following substantial questions of law:- "1. Whether the order of the CESTAT is legally sustainable and in conformity with the reasons and provisions of the Statute in its interpretation of "Outdoor Catering Service"? 2. Whether, the Tribunal was right in not recognising the fact of supply of food and beverages as an integral activity of "Outdoor Catering Service" which was recognised so by the Govt. of India to have uniformity in valuation and liability to tax issued a notification No. 20/04 dated 10-9-2004 read with Notification No. 1/2006 dated 1-3-2006 specifically for Outdoor Catering Service by allowing an abatement of 50 per cent of the gross value towards cost of foo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tering is the service rendered by the assessee in bringing the food articles to a place designated by the client. The service so rendered by the assessee, which also includes the cost of transporting the food articles constitutes service. Therefore, to this extent alone, the assessee is liable for service tax and not for the entire cost received from the Airlines. Hence, there has to be a bifurcation with regard to the sale of goods and the service provided. However, it does not empower the State Government to levy tax on the entire amount mentioned in the bill. The entire sale price includes the transportation charges also and out of that sale price what is the service aspect and what is the sale aspect requires to be decided by the author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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