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2015 (4) TMI 971 - MADRAS HIGH COURT

2015 (4) TMI 971 - MADRAS HIGH COURT - 2015 (39) S.T.R. 804 (Mad.) - Waiver of pre-deposit - Out-door catering services - benefit of Notification No.12/2003-ST - Held that:- whether the petitioner is eligible for the benefit of Notification No.12/2003-ST and whether the extended period of time under proviso to Section 73(1) of the Finance Act, 1994 is invokable to the petitioner's case are disputed questions of fact and the same could be raised before the Customs, Excise and Service Tax Appellat .....

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vy itself is unwarranted and as such the mandatory payment will cause undue hardship to them. In my considered view, in terms of the provisions of the Act, payment of 7.5% of the total tax demand is mandatory and that cannot be reduced by this Court and further, the petitioner could raise all the points raised before this Court before the CESTAT to substantiate its case. - Decided against assessee. - W.P.No.9619 of 2015, M.P.No.1 of 2015 - Dated:- 1-4-2015 - S.Vaidyanathan J. For the Appellant : .....

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nal customers such as M/s.Lakshmi Machine Works Ltd., M/s.Hindustan Photo Films, M/s.Parry Roca Private Ltd., and M/s.Tamil Nadu Newsprint and Papers Ltd., on mutually agreed terms. In the course of their business, the Audit Team of the department sent them a letter dated 03.04.2013 with regard to split up cost of materials and services. Further, a show cause notice dated 20.09.2013 was issued to the petitioner proposing the differential service tax on Out Door Catering Services for the period f .....

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tition is filed. 3. The learned counsel for the petitioner submitted that the Adjudicating Authority has wrongly placed reliance on the decision in the case of Sayyaji Hotels instead of the case of Hindusthan Aeronautics Ltd., Vs. Commissioner of Service Tax, Bangalore 2013 (32) STR 783 (Tri-L.B) and further cited Section 7(1)(b) of Tamil Nadu Value Added Tax Act, 2006 regarding sale of goods by presuming that the petitioner is a dealer and of un-branded nor is the food ready-to-eat. He further .....

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willing to pay 25% of the impugned demand and prayed this Court to remit the matter to adjudicating authority for consideration. 4. The Adjudicating Authority, in its order dated 11.12.2014 has pointed out that in Notification No.12/2003-ST dated 20.06.2003, the word sold is crucial; if during the provision of a service, there is a sale of any goods and the value of such goods are shown separately in the bills then such value will be eligible for abatement in terms of Notification No.12/2003-ST .....

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r is protecting himself against the vicissitudes of the price of the ingredients. Here, the contract is composite but divisible since the value of service portion and material portion are identifiable. The bill will perforce indicate them separately. On the other hand, if the contract is of the third type, there is no intention between the parties to apportion the consideration between the cost of service and the cost of ingredients. Therefore, any split-up of cost that may be indicated in the b .....

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