TMI Blog2017 (4) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 - Mr. Anil Choudhary, Member (Judicial) Shri K.K. Sharma, Advocate for the Appellant Shri Sandeep Kumar Singh, Deputy. Commr. (A.R.) for the Department Per Mr. Anil Choudhary : The issue in this appeal is whether under the facts and circumstances, the appellant is providing the service of outdoor catering as contended by the Department or involved in trading, that is running a restaurant as contended by the appellant. 2. The brief facts are that, an agreement dated 01.04.2007 was signed between Shri Amar Singh Gill' the Honarary Secretary Boat House Club Ltd. Nainital and Shri Sunder Lal Contractor' that he will deposit ₹ 50,000.00 as security and ₹ 4,00,000.00 as club Commission for out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is collecting the amount including VAT from the visiting members of the club but ultimately transferred the same to the club and thus it is considered that the appellant is collecting the amount from the members on behalf of their client ire, club . 4. Accordingly the learned Commissioner (Appeals) have held that the appellant is providing outdoor catering service relying on the ruling of Hon'ble Supreme Court in the case of Tamil Nadu Kalyana Mandapam Association Vs. Union of India 2004(167) ELT 3 , wherein the Hon'ble Apex court observed that the services rendered by outdoor caterers is clearly distinguishable from the service rendered in a restaurant or hotel, inasmuch as in the case of outdoor canteen service the food/ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see was engaged in sale and supply of food, beverage and dry stores to the airlines and they had not paid Service Tax on the gross amount received from the airlines. It was held that the supply of food/goods is/or sale of goods under Article 366 (29A) of Constitution of India. Food supplied under outdoor catering service is to be treated as sale of goods or foods. Service Tax is not payable on such value of goods/food once Sales Tax or VAT is levied and paid. Learned counsel also relied on the ruling of another Division Bench of this Tribunal in the case of LSG Sky Chefs (India) Pvt Ltd. Versus Commissioner of Service Tax, Bangalore 2010(18) STR 37 (Trig-Bang.), wherein under the fact that the assessee was engaged in the business of pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Commissioner (Appeals). 7. Having considered the rival contentions, I find that the activity of the appellant is running a restaurant and as held in the case of Tamil Nadu Kalyana Mandapam Association (supra), the said activity is not classifiable under outdoor catering service. Further, as held by Division Bench of this Tribunal under the admitted facts that Sales Tax have been paid on the sale of food items in the restaurant and service tax is not leviable as Sales Tax and Service Tax are mutually exclusive. Accordingly, this appeal is allowed and the impugned order is set aside. The appellant is entitled to consequent benefits in accordance with law. (Order was dictated in the open Court) - - TaxTMI - TMITax - Service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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