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TMI Blog2018 (6) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise, Mumbai-II holding them liable to tax for providing 'outdoor catering service' as defined in section 65(76a) of Finance Act, 1994 and taxable under section 65 (105) (zzt) of Finance Act, 1994. In the former order, demand for the period from 16th June 2005 to 31st March 2011 amounting of Rs. 5,67,93,885 impugned in three show cause notices dated 8th December 2009, 19th October 2010 and 5th October 2011 was confirmed, along with interest thereon, besides imposing penalties under section 76 and 78 in the decision pertaining to the first notice and under section 76 in the decision pertaining to the second and third notices. In the second of the orders impugned, demand of Rs. 2,70,10,395,&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier period had not. As our order did not consider this aspect, it is only proper that it should be done now. 4. It is a further contention of Learned Counsel that despite their plea during the nearing to adopt the ratio of the decision of the Hon'ble High Court of Allahabad in Indian Coffee Workers Co-op Society Ltd v. Commissioner of Central Excise & Service Tax, Allahabad [2014-TIOL-499-HC-ALL-ST], the order did not only not do so but also failed to record the submission. On perusal of the written submissions and the order, we take notice of that lack. At the same time, we did refer to that very judgement to uphold the levy against the applicant. 5. In re Indian Coffee Workers Co-op Society Ltd, the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts; or (v) contravention with intent to evade the payment of Service Tax. In the present case, there has been no discussion in the judgment of the CESTAT on whether the fundamental conditions for the imposition of a penalty under Section 78 were fulfilled. In Rajeev Kumar Gupta v. Commissioner of Central Excise, Jaipur - (2009) 21 STT 132 (New Delhi-CESTAT) = 2009 (16) S.T.R. 26 (Tri. - Del.), a Bench of the CESTAT at Delhi had held, albeit in a briefly reasoned decision, that the assessee who had engaged himself in the preparation and serving of food items at the premises of the company for which all the facilities were provided by the company, would not fall under the category of outdoor catering services. Undoubtedly, other decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso one of the members of the society. We find that the appellant has been given the benefit of abatement in the computation of the tax. Consequently, we find no reason to interfere with the impugned order. ' to read as "....We hold that the appellant is entitled to the benefit of abatement in notification no. 1/2006-ST dated 1st March 2006 to the extent that it has not been extended in the impugned orders. Considering the decision of the Hon'ble High Court of Allahabad in Indian Coffee Workers Co-op Society Ltd v. Commissioner of Central Excise & Service Tax, Allahabad [2014-TIOL-499-HC-I, we set aside the penalties under section 78 of Finance Act, 1994, if any, in the impugned orders.' 8. The impugned orders are modified to the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X
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