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2019 (5) TMI 702

includes both sale of food and service for consumption of food. Therefore the other component of 40% of gross value received from catering services cannot be definitely considered as exempted services to make Rule 6(3) of CENVAT Credit Rules, 2004 applicable and to maintain separate records for availment of CENVAT credit on it including on processed food purchased as raw material. Extended period of limitation - demand for the period prior to 01.06.2012 - HELD THAT:- It cannot be said that only because audit party had found some credit availed has inadmissible, suppression of fact is made out - Extended period cannot be invoked. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 86619 of 2018 - A/85859/2019 - 8 .....

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unsel for the appellant Shri S.P. Sheth submitted that inconsistent observation was made by the learned Commissioner (Appeals) in holding that outdoor catering service involving supply/sale of food and providing of service is a single composite transaction and simultaneously observing that Notification No. 12/2012-CE dated 17.03.2012 exempted prepared and supply of food items for which remaining 40% of the outdoor catering service is considered as exempted service and therefore, 6% duty on the total value of exempted goods is levyable as per Rule 6(3) of CENVAT Credit Rules, 2004. He further submitted that Rule 2C of the Service Tax (Determination of Value) Rules, 2006 does not exempt any service or any portion thereof for which the said or .....

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missioner had confirmed Order-in-Original imposing duty liability. He pointed out that a clear finding is made by the Commissioner (Appeals) that the activity is governed by Rule 6 of CENVAT Credit Rules, 2004 as there was mandatory requirement to maintain separate accounts for the input goods/services received in respect of dutiable services and exempted goods, which was not done by the appellant and therefore order of the Commissioner (Appeals) needs no interference by the Tribunal. 5. Heard from both sides at length and perused the case records. Caterer has been defined under Section 65(24) which means any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery a .....

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to passage of such an amendment act that suitably amended tax on the sale or purchase of goods and included the same in Article 366 of the Constitution of India under a new Article (29A). 5.2 On the other hand Service as defined under 65B (44) of the Finance Act, 1994 excludes (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution. 6. From a bare reading of the definition and provision reproduced above, it is apparently clear that a pure sale, unassociated with delivery of goods and services together, is not to be considered as service. Therefore what is contained in Section 66D of the Finance Act, 1994 dealing with negative list of services con .....

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ied out in the presence of assessee and in the process, the auditor is required to discuss the matter with the assessee and advice him to follow correct procedure in future. It is also referred in the said manual that after such submission of audit report, in cases where the disputed amount have not already been paid by the assessee at the spot, demand notices are issued by the department for their recoveries. EA 2000 audit was therefore held to be participative audit. Likewise CERA audit is conducted by the Comptroller and Auditor General of India in respect of receipt and expenditure of the Government of India. It also discharges revenue audit which covers central excise, service tax and customs laws during which time the assesses were ex .....

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