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TMI Blog2022 (5) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 2003-04 to 2007-08. It was found that assessee had been providing services of supply of bedroll kits to the passengers of train on behalf of IRCTC and not paid the service tax. The services bedrolls kits supplied to the passengers on behalf of IRCTC are squarely covered under the clause no. (ii) of the definition of 'Business Auxiliary Service' defined under Section 65(19) of the Finance Act 1994. Further investigation carried out and found that they also engaged in the business of providing Railway Catering Services covered under the Outdoor Catering Service as defined under Section 65(76a) of the Finance Act 1994. The Registration for the said service obtained from March 2006 and service provider had not calculated the appropriate value of railway catering service provided by them during the period from 01.03.2006 to 31.03.2008. Detail Show cause notice was issued proposing service tax of Rs. 55,47,317/- under the category of Outdoor Catering Service and Service tax amount of Rs.42,20,893/- under the category of Business Auxiliary Service. The adjudicating authority after considering the submissions made by the appellant dropped the demand related to the catering service an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance on the following Judgments: * Bridgestone Financial Services Vs CST, Bangalore - 2007(8) STR 505 (Tr.-Bang) * NRC Ltd. Vs. CCE, Thane -I - 2007 (5) STR 308 (Tri-Mum) * Tamilnadu Housing Board Vs CCE 1994 (74) ELT 9 (SC) * Collector Vs Chemphar Drugs -1989 (40) ELT 276 (SC) * Apex Electricals (P) Ltd Vs. UOI - 1992(61) ELT 413 * Pahwa Machines Vs Commissioner -2003 (153) ELTA92 (SC) * White Machines Vs Commissioner - 2003 (153) ELT A92 (SC) * Continental Foundation jt. Venture Vs CCE, Chandigarh -2007(216) ELT 177 (SC) * Dalveer Sing Vs CCE Jaipur - 2008 (9) STR 491 (Tri.-Del) * CCE Raigad Vs Shield Security Force - 2006 (5 ) STR 97(Tri. Mum) * CCE Bhopal Vs Thyrocare Services - 2006 (4) STR 200 (Tri. -Del) * CCE, Jaipur Vs Sikar Ex- Serviceman Welfare Co-op.-Soc. Ltd. -2006 (4) 213 (Tri.- Del) * Hindustan Steel Vs State of Orissa - 1978 (2) ELT (J159) (SC) * Cement Marketing Co. -1980 (6) ELT 295 (SC) * CC Vs Seth Enterprises - 1990 (49) ELT 619 (Tri. Del) * CCE Delhi Vs Soni & Toni Electricals - 2007 (217) ELT 457 (Tri. Del) 4. On other hand, Shri J.A Patel, Learned Superintendent (AR)opposed the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating authority has erred in interpreting that Notification No. 12/2003 exempts catering service. This was not an issue in the SCN and therefore the OIO has traveled the beyond the scope. 4.2 He further submits that, service provider during the adjudicating proceedings has submitted that he is not an outdoor caterer at all since they have been using the Pentry Car in the trains for which the contract has been granted. This is also incorrect in as much as the wording used in in the Notification No. 19/2004-S.T. dtd. 10.09.2004, make it very clear that catering service provided in trains is liable to service tax but has been exempted vide said Notification. Moreover the definition of Outdoor Caterer provided under Section 65(76a) means "a caterer engaged in providing services in connection with catering at a place other than his own but including a place provided by way of tenancy or otherwise by the person receiving such service." 4.3 He also submits that in the present matter service provider has submitted that they are paying VAT/Sales Tax on the gross sales and in view of this they are not liable to pay service tax. The Kerala High Court in the case of SAJ Flight Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocessing of goods for, or on behalf of, the client;] (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, [but does not include any activity that amounts to manufacture of excisable goods]. [Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this clause, ------------------------------------------------------------------------------------------ 5.2 The facts, is not disputed in the present matter that Appellant has supplied bedroll kits to passengers of Air-Conditioned class and other classes on behalf of IRCTC. As per the contract with IRCTC, the Appellant has to compulsorily provide the bedroll kit to passengers on demand. For the said services a monthly bill was raised by the appellant to IRCTC, the appellant for the said services needs not to charge the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d items at prescribed rates on the trains. The noticee, has claimed benefit of Notification No. 12/2003-ST dated 20.06.2003 and abetment on account of goods had been claimed. I find that the SCN calculates the value of goods sold on the basis of the inputs purchased. Various margins of profit have been added without substantiating the same. In the entire notice the fact that material has been sold on the train has not been challenged. In fact the tax has been demanded on the value of goods sold as is apparent from the Annexure to the SCN. 77. In the instant case it has been found that the purchases were different from those declared in the balance sheet. On the basis of the actual purchase some value of sales has been worked out. But the allegation is that the said packaged material and cooked food of the revised value has been sold on the trains. Notification No. 12/2003-ST dated 20/06/2003 read as under: "In exercise of the powers conferred by section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts so much of the value of all the taxable services, as is equal to the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2007-08 the service provider has declared the value of purchase as Rs. 57,09,894/- against the acutal value of purchase of Rs. 1,47,98,977/- detected by them. Shri KishorbhaiHakamichandChotai, partner of Appellant in his statement has agreed to fact that they had considered the some of their purchase like bread, vegetables, fruits and eggs towards re-sales while actually the same were part of the catering service. He has agreed to the differential taxable value and paid an amount of Rs. 25,47,919/- . Ld. Adjudicating authority ignored the fact that calculations were based on scrutiny of account ledgers, purchase and sales documents and Balance sheet. (b) The Adjudicating authority has erred in considering Notification No. 12/2003-S.T alone and dropping the demand. Since the service provider is already availing the benefit of Notification No. 1/2006, they cannot be avail the benefit of Notification No. 12/2003-ST. 5.4 We find that the aforesaid facts has not been examined in the impugned order by the Ld. Adjudicating authority. As a result, the impugned order as regard the said issue is set aside and matter is remanded to the adjudicating authority to consider aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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