TMI Blog2019 (2) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... rs from whom the Railways have already retrieved the cost at the time of supply of the ticket - further, in any case and in any view of the matter the supply of newspapers is not covered by the definition of outdoor caterers is given in Section 65(76a) of the Finance Act. Newspapers supplied by the appellant on behalf of the railways can by no stretch of imagination, be considered to be in the same line of food or food articles - the cost of the newspapers cannot form part of value of catering services . Inclusion of sale of packed confectionary items to the passengers - Held that:- The issue is no more res integra and an identical issue was considered by the Tribunal in the case of LSG Shyshape Chegs (P) Ltd. v. CST [2009 (1) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand is accordingly hit by the bar of limitation having been raised beyond the normal period. Appeal allowed - decided in favor of appellant. - ST/683/2012-CU[DB] - FINAL ORDER NO.70257/2019 - Dated:- 13-2-2019 - MRS. ARCHANA WADHWA, MEMBER(JUDICIAL) And SHRI ANIL G. SHAKKARWAR, MEMBER(TECHNICAL) Vanashri Dubey (Advocate) for the Appellant (s) Shri Gyanendra Tripathi, Asstt. Commr. (A.R.) for the Revenue ORDER Per Mrs. Archana Wadhwa : As per facts on record the appellant is registered with the Service Tax department for providing the services of outdoor caterers . Such services are being provided by them to the passengers travelling in Rajdhani/Shatabdi trains and the other mail/express trains. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant disentitled to the benefit of abatement provided in terms of the said Notification. 3. Accordingly a show cause notice dated 14.10.2010 was issued to the appellant proposing confirmation of demand of Service Tax allegedly not paid during the period 2006-07 upto 2009-10. The notice also proposed imposition of penalty. The said notice stands culminated into impugned order passed by the Commissioner confirming the demand to the tune of ₹ 1,46,26,474/- (Rupees One Crore Forty Six Lakhs Twenty Six Thousand Four Hundred and Seventy Four only) along with confirmation of interest and imposition of penalty of identical amount. Hence the present appeal. 4. Learned Advocate appearing on behalf of the appellant has drawn our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e strongly contended that the cost of newspapers @ ₹ 2/- is being recovered by them from IRCTC, for whom they are acting as a pure agent. In terms of Rule 5(2) of the Valuation of Taxable Services, a cost incurred by the service provider as a pure agent is to be excluded from the value of the services. Inasmuch as they have entered into a contractual agreement with M/s. IRCTC to act as pure agent to incur expenditure or cost of newspaper in the course of providing taxable services and neither intends to hold nor holds any title to the said newspaper so procured or provided as pure agent of the recipient of the services and receives only the actual amount of the said newspapers from the Railways, the cost of the same cannot be included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht out items and subsequently supplied by the caterer to the passengers on rail for example, books, newspapers, mouth-freshners etc.. We are afraid that we do not find ourselves in agreement with the interpretation given by the adjudicating authority to the term similar articles . The said expression has to adopt its colour according to the principle of ejusdem generis either from the preceeding or succeeding expressions. The use of the word crockery prior to the expression similar articles and the use of the expression accoutrements subsequent to the expression similar articles indicate that the items have to be something relatable to food or eating experiences. Newspapers supplied by the appellant on behalf of the railways can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lights, like packed cashew nut, almond and cheeses) to an airline and claim exemption of value of material or goods sold from Service Tax. It was held transaction is of sale of goods and as VAT had already been paid, same could not be charged for Service Tax again. The Commissioner has not denied the fact that the readymade packed items sold by the appellant has already discharged the VAT element. If that be so, the confirmation of Service Tax against the same by including the cost of the same in the value of the catering services is unsustainable. 7. Thirdly the Commissioner has denied the benefit of Notification No.1/2006-ST dated 01.03.2006, which provides for abatement of 50%, on the sole ground that the value of the sold out it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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