TMI Blog2015 (6) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... rief and non-speaking order of the Tribunal. - amount of pre-deposit reduced to 50% - Decided partly in favour of assessee. - C. M. A. Nos. 537 to 540 of 2015 - - - Dated:- 12-6-2015 - R. Sudhakar And K. B. K. Vasuki,JJ. For the Appellant : Mr. N. Sriprakash For the Respondents : Mr. V.Sundareswaran - R2 JUDGMENT ( Delivered By R. Sudhakar, J.) Aggrieved by the common order of the Tribunal ordering pre-deposit in the applications filed by the appellant/assessee, the appellant/assessee is before this Court by filing the present appeals raising the following questions of law :- i) Whether the CESTAT has committed an error of law in disregarding the principles laid down by the Hon'ble Supreme Court in its judgments reported in 1980(2) SCC 167 [Northern India Caterers (India) Limited v. Lt. Governor of Delhi] and 167 ELT 3 [Tamil Nadu Kalyana Mandapam Association v. Union of India] and the judgment of the Hon'ble Delhi High Court reported in 20 STR 437 [M/s. IRCTC vs. Government of NCT of Delhi]? ii) Whether the CESTAT has committed an error of law in disregarding the factors relevant for disposal of a waiver-cum-stay application? 2. The brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases and have not done so in other cases. 13. The impugned notices have made out a case that the transaction between the passengers and M/s.P.K.Shefi is amounting to outdoor catering service which attracts levy of service and as the said service provider had billed and collected the charges for his activity which are inclusive of the charges for supply of food, service tax was payable on 50% of the gross value of the charges received, in terms of Sections 66 68 of the Finance Act, 1994 read with Notification No.1/2006-ST dated 1.3.2006. 6. The Adjudicating Authority relying upon the decision of the Apex Court in the case of Tamil Nadu Kalyana Mandapam Association V. UOI reported in [2006] (003) STR 260 came to hold that there was no difference in the service provided by the present appellant from the one provided by the outdoor caterer provided in factory canteens. For better clarity, we extract below the findings of the Adjudicating Authority: 15.2. In the present case, I do not find any difference between the services rendered on board the trains and the out-door catering service provided in factory canteens where the outdoor caterer are engaged to provide the caterin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendent of Central Excise reported in 2006 (04) STR 429 (HC-Ker.) and held that it is a clear case of levy of service tax. The Adjudicating Authority, therefore, gave a reasoned order holding that the supply of services along with food etc. rendered by the appellant in trains other than Rajthani/Shatabdi express trains in the period from March 2006 to December 2012 amounted to outdoor catering service as defined under the Finance Act, 1994 and determined the service payable by them to the tune of ₹ 5,90,89,389 with interest. He also imposed penalty under Sections 78 and 76 of the Finance Act, 1994. 9. Aggrieved by the said order of adjudication, the appellant/assessee preferred appeals before the Tribunal along with an application for waiver of pre-deposit. The Tribunal considering the ratio laid down in the case of Imagic Creative Pvt. Ltd. v. Commissioner of Commercial Taxes reported in 2008 (9) STR 337 (SC), ordered pre-deposit. For better clarity, the order of the Tribunal reads as follows: 1. Ld. Counsel vehemently opposes adjudication on the ground that services provided by appellant in railway trains along with food shall not bring the transaction to tax net und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the period March 2006 to September, 2009 stating that he has filed a Writ Petition and the Department was aware of the same. 13. We are unable to accept such a plea. as the present proceedings have been initiated by the jurisdictional Commissioner and they were not a party to the said Writ Petition. Even otherwise, the other plea of the appellant is that when there are two views one in favour of the assessee in view of the decision of the Delhi High Court and the contra view by the Kerala High Court on the issue, as to whether such transaction would be outdoor catering, liable for service tax, suppression cannot be alleged per se. 14. This contention is opposed by the learned standing counsel appearing for the respondent. The issue as to whether the liability to service tax in respect of the services rendered by the appellant would fall outside the purview of the service tax has to be considered by the Tribunal on the basis of the factual position relating to the contract, the nature of services provided as alleged by the Department and taking into consideration the plea of the appellant that they are only effecting primary sales. We are not inclined to go into the merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of contract between to petitioner-company and the passengers travelling in trains. No package of services is being provided to Indian Railways, by the petitioner-company. It is neither a contract for providing service nor a composite contract for sale/supply of goods and providing of service by the petition-company to Indian Railways. The contesting respondents are, therefore, entitled to levy and demand VAT, on the entire amount of consideration paid by Indian Railways to the petitioner-company for food and beverages. 47. In the case of Northern Caterers (supra) one of the reasons for holding that the transaction was not a sale, was that the customer had no right to take away the unconsumed food. There is no such prohibition on the passengers travelling in trains. Since the transaction in a restaurant has, in subsequent decisions, been held to be a sale, despite the Court taking the view that the customer had no right to take away the unconsumed food, these is no good reason to take a different view in a transaction involving a train passenger, to whom even such a disability is not attached. 17. As a corollary, it also held that it is for the petitioner to claim refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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