TMI Blog2016 (12) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, 1994. Time limitation - Held that: - the appellant has been rendering the service for long and also happens to be a co-operative society which could not have been unaware of the legal provisions of taxation. It cannot also claim to have lacked knowledge inasmuch as M/s Larsen & Toubro is also one of the members of the society - period of limitation invoked. Appeal rejected - decided against appellant. - APPEAL No.ST/346/2012 & ST/86247/2014 - ORDER No.A/94088-94089/16/STB - Dated:- 29-11-2016 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri Prakash Shah, Advocate, the appellant Shri D Nagvenkar, Addl. Commissioner (AR) for the respondent Per: C J Mathew: Vide th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficials and employees of M/s Larsen Toubro besides M/s Larsen Toubro itself and has been incorporated to operate the canteen at the Powai premises of M/s Larsen Toubro. Section 46 of Factories Act, 1948 empowers the State Governments to frame rules for operation of canteens in establishments employing more than 250 persons and this canteen has been established accordingly. Proceedings were initiated to recover tax from the appellant as provider of 'outdoor catering service.' 3. The adjudicating authority confirmed the demands on the ground that the appellant received consideration from M/s Larsen Toubro for undertaking which fall within the definition of section 65(105)(zzt) which is any service provided or to he pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Coffee Workers Co-op. Society Ltd v. Commissioner of Central Excise, Allahabad [2014 (33) STR 266 (Tr. -Del.)], and Indian Coffee Workers Co-op. Society Ltd v. Commissioner of Central Excise Service Tax, Allahabad [2014-TIOL-499-HC-ALL-ST]. Learned Counsel for the appellant also relies upon the decision of Karnataka High Court in Commissioner of Service Tax, Bangalore v. LSG Sky Chef India Pvt Ltd [2012 (27) STR 5 (Kar)]. On behalf of appellant, a copy of tax invoice dated 31 st March 2012 showing the manner in which payment is made to the appellant by M/s Larsen Toubro was also submitted. 5. Learned Authorised Representative reiterates the contents of the impugned orders and drew our attention to the provisions of Mahar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsumer and the employer. The totality of such consideration may not be sufficient to pay for the operational cost of the canteen and, in the present case, the deficit is made good by M/s Larsen Toubro. In addition, space, equipment and access to utilities, such as electricity and water, are provided by M/s Larsen Toubro. From the above it would the appellant performs an activity on behalf of M/s Larsen Toubro for commercial or other reasons. This would naturally make the appellant a provider of service and 7. The appellant provides food to employees of M/s Larsen Toubro and it is the capacity of canteen operator that this service is rendered. The status of the appellant as a society of employees is irrelevant to the performance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is the individual employee who pays for the food or article. As we have noted above, the individual makes part payment for the food which is an ingredient of the wage negotiation with employer meeting the subsidy agreed upon. Mere payment of some portion of the cost does not render the activity as a commercial transaction between appellant and the consumer. On the claim of mutuality, we are of the opinion that the society and its membership is not germane to the contract between M/s Larsen Toubro and the appellant for engaging the latter as a caterer of food and drink in the canteen at Powai campus. 10. In re Rajeev Kumar Gupta , the Tribunal has held that 5. We have carefully considered the submissions from both sides. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the service of an outdoor caterer. In our view, there is a fundamental fallacy in the submission of the assessee that it should be held not to fall within the definition of the expression 'outdoor caterer on the ground that the food, edibles or beverages are provided not to NTPC or LANCO but to their employees, customers and guests. That, in our begs the question. The taxable catering service cannot, in our view, be confused with who has actually consumed the food, edibles and beverages which are supplied by the assessee. Taxability or the charge of tax does not depend on whether and to what extent the person engaging the service consumes the edibles and beverages supplied, wholly or in part. What is material is whether the service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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