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2019 (5) TMI 702

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..... - 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 - Dated:- 8-5-2019 - DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri S.P. Sheth, Advocate for the Appellant Shri O.M. Shivadikar, Assistant Commissioner, Authorised Representative for the Respondent ORDER Confirmation of duty demand of ₹ 20,70,719/- along with interest and equivalent penalty by the Commissioner of GST & Central Excise (Appeals Thane), Mumbai on 40% non-taxable component of services in terms of R .....

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..... door 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 order is erroneous and in case of outdoor catering service, no independent provisions of exempted service or supply of any exempted goods is found to make Rule 6 applicable in the case of appellant. Further he brought a distinction between valuation and CENVAT credit and pointed out with reference to Circular No. 137/3/2006-CX.4 dated 02.02.2006 that a expression which is not defined in the CENVAT Credit Rules b .....

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..... e 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 and similar articles or accoutrements for any purpose or occasion. Therefore, supply of food, edible preparation and supply of articles like crockery etc. are done by the caterer. In the common parlance food is consumed while crockery and similar items used and re-used for the purpose of serving of food. Apparently, taking those aspects into consideration in the determination of the value of service portion inv .....

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..... 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 concerning trading of goods and the clarificatory circular as well as inclusion of the same in the explanation appended to clause 2(e) of the Cenvat Credit Rules 2004 are mere clarificatory in nature since definition of service as contained in 65B(44) and exempted service in 66D are to be read conjointly and not in exclusion of each other. 7. As discussed above, catering service includes both sale of food and ser .....

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..... 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 examined by CERA audit party to point out the deficiencies, leakage of revenue and non recoveries of dues by the Central Excise Department. Therefore, it cannot be said that only because audit party had found some credit availed has inadmissible, suppression of fact is made out. Hence the order. ORDER 10. The appeal is allowed and the order passed by the Commissioner of GST & Central Excise (Appeals Thane), .....

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