TMI Blog2009 (1) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... is very clear that VAT or sale tax has already been discharged by the appellants. Once the sale tax has already been discharged by them, they cannot be asked to pay service tax on the same value. - the benefit of Notification No. 12/2003-ST is available to all the services. There is an exclusion of the value of the goods sold during their rendering of service. In this case, it is very clear in view of the separate invoices raised that the food/beverages supplied have been separately paid for – Demand and penalties set aside. - ST/390 & 430/2007 - 63-64/2009 - Dated:- 30-1-2009 - Shri T.K. Jayaraman, Member (Technical) and Shri M.V. Ravindran, Member (Judicial) (Final Order Nos. 63-64/2009 and Misc. Order No. M/52/2009 dt. 30.1.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of Notification No. 20/2004-ST and 1/2006-ST and gave an abatement of 50% in terms of the said Notifications. Apart from confirming the demand, penalties under various Sections of the Finance Act, 1994 have been imposed. In fact, the penalty under Section 78 is Rs. 32,00,000/-, whereas the differential duty demanded is only Rs. 21,26,424/-. The issue before the Tribunal is whether the assessee providing 'Outdoor Catering Service' is liable to pay service tax on the value of the goods sold to the recipients of service and ineligible for the benefit of Notification No. 12/2003-ST dated 20.6.2003. The Revenue has also filed cross objection in respect of the appeal filed by the party. In Para 2 of the cross objection, it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee does not satisfy the conditions prescribed under Notification No. 12/2003-ST is not applicable and is devoid of merits. (iii) It was also argued that when two Notifications are available, the assessee always has an option of choosing one. It was argued that nothing prevents the assessee from availing the benefit of the Notification No. 12/2003-ST. (iv) Further point was urged that the Notification No. 20/2004-ST will not be available to the appellants, if they avail Notification No. 12/2003- ST. Therefore both the Notifications are mutually exclusive. The assessee can avail only one Notification and not both the Notifications. In this connection, the following case laws were relied on (a) HCL Ltd. Vs. Collector of Customs [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003-ST dated 20.6.2003. 4. On a very careful consideration of the issue, we find that the appellants are registered under the category of 'Outdoor Catering Services'. Though in their appeal, they made a point that they would not be liable to service tax under the category of 'Outdoor Catering Services', when the argument was before this Bench that approach had been given up and they were mainly urging the point that they would be entitled for benefit of exemption Notification No. 12/2003-ST. It is seen that the appellants had already discharged service tax liability on the gross receipt excluding the cost of the food, beverages, etc. This is not in dispute. As regards the legal position with regard to the exclusion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person to whom such transfer, delivery or supply is made. It is very clear from the Article 366 (29A) (f) that a tax on the supply of goods being food or any article for human consumption where such supply of service is for cash, deferred payment and other valuable services and that supply of any goods shall be deemed to be a sale. We also noted that the decision of the Hon'ble Supreme Court in the case of BSNL Vs. Union of India (supra). It is very clear that Article 369 (29A) specifically provides a legal fiction in respect of catering contracts where the contracts can be divisible into two components, i.e. service portion and sale of goods portion. As far as the sale of goods portion is concerned, it is very clear that VAT or sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit in the impugned order and the same is set aside. The appellant is not liable to pay the differential duty. Hence all the penalties are set aside. Thus we allow the appeal with consequential relief. Hence the appeal and the cross objection are disposed of in the above manner. Appeal No. 430/2007 filed by the Revenue 6. Revenue has filed an appeal against the impugned order on the following grounds : (i) The Commissioner has erred in imposing the penalty at flat rate of Rs. 200/- per day under Section 76 for the entire period from November 2005 to May 2006, contrary to the new penal provisions contained in Section 76 which specify that penalty shall be imposed at the rate of two hundred rupee for every day or 2% per month ..... X X X X Extracts X X X X X X X X Extracts X X X X
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