TMI Blog2019 (1) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... urcated from service provided - the demand amounting to ₹ 47,81,657/- with interest thereon and also the imposition of penalties on that score cannot sustain and will require to be set aside - demand set aside. Whether the amount of commission, consultancy fees and housekeeping and pantry management charges received by the appellant are required to be included in the value of taxable service under Outdoor Catering category or otherwise? - Held that:- There are no corroborative evidence in the Show Cause Notice or the impugned Order to shore up the Department s allegation that these charges actually relate to Outdoor Catering Service only - The clarifications of appellant in this regard have also not been addressed or rebutted by the adjudicating authority - this demand with interest and penalty also does not have any basis to sustain - demand set aside. Appeal allowed in toto. - Appeal No.: ST/00348/2012 - Final Order No. 40160/2019 - Dated:- 23-1-2019 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri. N. Viswanathan, Advocate for the Appellant Shri. B. Balamurugan, AC (AR) for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n held by the Apex Court in Imagic Creative Pvt. Ltd. Vs. C.C.T. 2008 (9) S.T.R. 337 and hence, their practice of payment of sales tax on food items supplied and payment of service tax on the service charge collected from the customers is correct and legal and hence the same ought not to have been impugned by the Department without any rhyme or reason or cogent reasons; (ii) Even assuming that the above supply of foods is a composite contract involving both the supply of food articles and provision of service, their availment of the exemption provided under Notification No. 12/2003-ST in respect of food articles is also correct in as much as they have paid VAT on the food articles in proof of which they submitted documents specifically indicating the value of the food articles thereby satisfying the legal requirement of Notification No. 12/2003-ST; (iii) The Ld. adjudicating authority s allegation that the transaction of the assessee is a composite activity and cannot be artificially vivisected into sale and service portions is not correct as it was not correct as it was not based on facts since the appellants have shown the value of food articles and service charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to light is not correct and sustainable in view of judicial decisions in : (a) Steer Engineering Pvt. Ltd. Vs. C.C.E. 2017 (358) E.L.T. 390; and (b) Punj Lloyd Vs. C.C.E. S.T., Rohtak 2015 (40) S.T.R. 1028. (viii) Where suppression, fraud, etc., cannot be alleged, extended time limit under proviso to Section 73(1) is not invocable and penalty under Section 78 is not imposable as has been held in : (a) SPG Metal Industries Pvt. Ltd. Vs. C.C.E. 1999 (111) E.L.T. 286; (b) C.C.E. Vs. HMM Ltd. 1995 (76) E.L.T. 497 (S.C.); and (c) Anand Nishikawa Co. Ltd. Vs. C.C.E. 2005 (188) E.L.T. 149 (S.C.). 4. On the other hand, Ld. AR Shri. B. Balamurugan appearing on behalf of the respondent supports the impugned Order. He submits that the appellant had not adduced any evidence during the investigation or during adjudication; that the amounts received in respect of commission, consultancy fees and housekeeping and pantry management charges were unrelated to Outdoor Catering Service. 5. Heard both sides and have gone through the facts of the case. 6. We find that the issues in dispute are as under : (i) Whether the differential service tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ludes the cost of transporting the food articles constitutes service. Therefore, to this extent alone, the assessee is liable for service tax and not for the entire cost received from the Airlines. Hence, there has to be a bifurcation with regard to the sale of goods and the service provided. However, it does not empower the State Government to levy tax on the entire amount mentioned in the bill. The entire sale price includes the transportation charges also and out of that sale price what is the service aspect and what is the sale aspect requires to be decided by the authorities. It is only thereafter that sales tax could be imposed on the cost of the food articles arrived at and the remaining extent including transportation is to be treated as liable for service tax. Therefore, the Court declared that a contract for outdoor catering is a composite contract which falls under sub-clause (f) of clause (29-A) of Article 366 of the Constitution of India and service tax is payable on service aspect and sales tax is payable on deemed sales aspect and it is not an indivisible contract. 8. The facts involved in the present case are identical to the facts that arose in the Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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