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TMI Blog2021 (11) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... tdoor Catering Service" provided for the period 22.10.2013 to 31.03.2016 amounting to Rs. Rs. 174,27,35,557/-, made in the Show Cause Notice under Section 73(1) of the Finance Act, 1994, by invoking the proviso clause thereto, as payable by M/s. Sodexo Facilities Management Services Pvt. Ltd., Mumbai - 400 064 and order recovery of the said amount; 53.2 I order recovery of statutory interest at appropriate rate on the amount of Service Tax demand confirmed at Para 53.1 above from M/s. Sodexo Facilities Management Services Pvt. Ltd., Mumbai - 400 064, under the provisions of Section 75 of the Finance Act, 1994; 53.3 I do not impose any penalty under Section 76 of the Finance Act, 1994 on M/s. Sodexo Facilities Management Services Pvt. Ltd., Mumbai - 400 064, as penalty is being imposed under Section 78 ibid. 53.4 I impose penalty of Rs. 22,79,62,375/- (Rupees Twenty Two Crore Seventy Nine Lakh Sixty Two Thousand Three Hundred Seventy Five only) on M/s. Sodexo Facilities Management Services Pvt. Ltd., Mumbai - 400 064, under the provisions of Section 78 of the Finance Act, 1994. However the notice shall be eligible to benefit of a reduced penalty @ 25% of the said total amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering services to various factories/business entities in Mumbai as well as in other places across the country and were paying service tax on outdoor catering services prior to October 2013 and stopped paying service tax on the value of outdoor catering services so provided after availing exemption under Notification No.14/2013-ST dated 22.10.2013, wherever the number of workers were more than 250 in a factory. They continued to pay service tax where the number of workers were less than 250 in a factory claiming their services as outdoor catering services. 2.2 Investigations were undertaken by DGCEI and identically worded show cause notices dated 29.11.2016 & 22.06.2017 were issued to the appellants, stating as follows:- Show Cause Notice dated 29.11.2016 "45. Now, therefore, M/s. Sodexo Facilities Management Services Pvt. Ltd. situated at 1st Floor, Gem Star Commercial Complex, Ramachandra Lane Extension, Kanchpada, Malad West, Mumbai - 64, are called upon to show cause to the Commissioner of Service Tax, Mumbai-VI, Mahavir Vidyalaya, CD Burfiwala Lane, Juhu Gali, Andheri (West), Mumbai-400020, within thirty days of receipt of this notice, as to why- i. the activity of suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Complex, Ramachandra Lane Extension, Kanchpada, Malad West, Mumbai - 64, are called upon to show cause to the Commissioner of Service Tax, Mumbai-VI, Mahavir Vidyalaya, CD Burfiwala Lane, Juhu Gali, Andheri (West), Mumbai-400020, within thirty days of receipt of this notice, as to why- i. the activity of supply of food and beverages to the recipient factories/industrial establishments claimed to be a service provided 'by a canteen' should not be held as outdoor catering service and why the same should not be held as a taxable service; ii. the amount of Rs. 35,82,30,444/- (Rs. 59,70,50,740/- X 60% = Rs. 35,82,30,444/-) received by M/s. SFMSIPL, Mumbai (as shown in Annexure-16) should not be held as taxable value for levy of service tax in terms of Section 67 of Finance Act, 1994; iii. the benefit of notification 14/2013 ST dt.22.10.2013 should not be denied to them; iv. Service tax amounting to Rs. 4,76,64,754/- (Rupees Four Crore Seventy Six Lakh Sixty Four Thousand Seven Hundred Fifty Four only) inclusive of Education Cess and Secondary & Higher Education Cess not-paid by them on the services other than negative list provided by them, (as enclosed in Annexure- 16), durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeal) decided the issue contrary to the decisions rendered by this Tribunal in case of ICS, Bombay High Court, remanded the matter back to Commissioner (Appeal) for deciding the issue after taking into consideration the decision in case of ICS. [Sodexo India Services Pvt. Ltd. [2021 (7) TMI - 648 - BOM HC] * In the matter on remand by the Hon'ble Bombay High Court, the Commissioner (Appeals) vide his Order-in- Appeal No. NA/GST/A-III/MUM/60/2021-22 dated 26.07.2021, has also allowed the appeal filed by the appellant on the very same issue. * In view of above, these appeals should be allowed by following the decision of the Allahabad Bench of the Tribunal, as affirmed by the Hon'ble Supreme Court. 3.3 Learned AR reiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in the appeal and during the course of argument. 4.2 In the case of Sai Food Services [Final Order No. A/85938/2020 dated 07.02.2020], this Tribunal in paras 6 to 7 has held as follows:- "6. The taxable service in relation to provision of 'Outdoor Caterer' is defined under Section 65 (76a) read with Section 65 (105) (zzt) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case inasmuch as the issue involved in those decided cases relates to levy and payment of service tax on the impugned service and not on the issue of availment of the exemption benefit provided under the above referred notifications. 7. In view of the foregoing discussions, we do not find any merits in the impugned order. Accordingly, by setting aside the same, the appeal is allowed in favour of the appellant." 4.3 In case of ICS Food Pvt Ltd [2018-TIOL-2349-CESTATALL] Allahabad Bench decided the issue stating as follows: "2. It is important to understand the wording and the intent in the Entry No.19A of the mega exemption Notification. Clarity on the intent of the Entry No.19A can be had by studying the same in juxtaposition of the words in Entry No.19 which precedes, this entry. While, Entry No.19 reads as - "Services provided in relation to serving of food or beverages by a restaurant, eating joints, or a mess, other than those having the facility of air-conditioning or central-heating in any part of the establishment, at any time during the year;" the Entry No.19A includes such services of food and beverages "by a canteen maintained in a factory covered under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxing of the services received by the factory employees as the service provider is receiving consideration only from the factory. Such an interpretation is neither mandated nor intended under the Notification. 5. Based on the provisions of Section 66F(1) of the Act it is also alleged that the main service i.e. canteen service is exempted under the Notification No.14/2013-ST and not the outdoor catering services which is used to provide such service. The provisions of Section 66F(1) are extracted as below:- "Unless otherwise specified, reference to a service (herein referred to as main service) shall not include reference to a service which is used for providing main service." 6. It emanates from the facts that the appellant is entering into agreement with factories for providing catering services in their canteens, for the employees as per rates agreed upon for not only supplies but also serving of food and beverages. In the negative list based service tax regime "canteen" and "outdoor caterer" is not defined. Therefore, it would be prudent to take recourse to definitions provided under the Finance Act, 1994 as these were in existence till 30/06/2012. 7. Section 65(24) [a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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