TMI Blog2024 (4) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... ith and substance a tax on services and not a tax on sale of goods or on hire purchase activities. Even Bombay High Court in the case of NARANG HOTELS AND RESORTS PVT. LTD. VERSUS STATE OF MAHARASHTRA AND OTHERS [ 2003 (10) TMI 620 - BOMBAY HIGH COURT] has held that the sale by a flight kitchen of eatable or goods is complete when the goods are loaded in the supply unit and despatched when the supplied food is served simultaneously it is outdoor catering else it is merely sale of goods more so in the case when invoice shows it as a separate element. Thus it is clear that the issue involved in the present case is no more res-integra that supply of F B per se is not the outdoor catering service . It rather amounts to sale of F B. The Adjudicating Authority has considered most of the above said decisions while dropping the demand proposed by the impugned show cause notice. There are no infirmity in the order, the same is hereby upheld - appeal dismissed. - HON BLE DR. RACHNA GUPTA , MEMBER ( JUDICIAL ) And HON BLE MRS. HEMAMBIKA R. PRIYA , MEMBER ( TECHNICAL ) Shri Manoj Kumar , Authorized Representative for the Appellant Shri Yash Parmar , Chartered Accountant for the Respondent OR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The activities of respondent are well covered under Section 65 (B) (44) of Finance Act, 1994 which deals with situation where supply of food is the part of the reduced activity. The Respondent themselves have declared the category of service as Outdoor Catering , however, have raised separate invoices for supply of food and beverages and for other services of transportation uploading, handling and storing of such food beverages. This is a deliberate act of the respondent to evade payment of service tax on the proper value of services including the value of food and beverages. Learned Authorized Representative further mentioned that w.e.f. 01.07.2012 service tax is leviable on value of all services under Section 66B except those as specified in negative list in section 66(D) of the Finance Act irrespective provided or agreed to be provided in the taxable territory by the one person or the other. The impugned activity of respondents is denied to be covered under said negative list. 4. Learned Authorized Representative has laid emphasis upon the definition of declared service under Section 66 E to mean as follows:- service portion in an activity wherein goods, being food and any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STAT-MAD] Daspalla Hotels Ltd. vs. CCE., Visakhapatnam [2010 (18) S.T.R. 75 (Tri.-Bang)] 7. It is also mentioned that though the Notification No. 12/2003 dated 12.06.2003 according to which transfer, delivery or supply of goods is deemed to be the sale within the meaning of clause 29(A) of Article 366 of the Constitution was not applicable during the period in question. But, the definition of services in Finance Act, 1994 itself fully captures, said the intent of the said Notification No. 12/2003. Finally, it is submitted by the Learned Counsel for respondent that the extended period has also been wrongly invoked vide the impugned show cause notice, as there is neither any mis-representation nor any suppressed. There is also no iota of evidence that respondent had intent to evade payment of service tax. Impressing upon no infirmity in the order under challenge, the appeal is prayed to be dismissed. 8. Having heard both the parties and perusing the decisions relied upon by the respondent, we observe and hold as follows:- The activity rendered by the assessee-respondent is alleged to be outdoor catering services. Foremost we need to know the definition of outdoor catering services. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Railways. The fact that the food is served while the train is moving through another State is immaterial. It is not possible to accept that property in goods is transferred only when the food is served to the passenger as it would lead to impossible situations. Even Bombay High Court in the case of Narang Hotels and Resorts vs. State of Maharashtra reported as 2004 (135) STC 289 has held that the sale by a flight kitchen of eatable or goods is complete when the goods are loaded in the supply unit and despatched when the supplied food is served simultaneously it is outdoor catering else it is merely sale of goods more so in the case when invoice shows it as a separate element. This Tribunal also in the case of M/s EIHA Unit of Oberoy Flight Services (supra) has held that since the appellant was simply supplying the food and was not serving the same to the passenger on board, it was specifically a sale of goods, the appellants have already discharged the VAT liability thereof. The activity cannot be called as outdoor catering service. For the remaining ancillary services, the appellant is discharging the liability under service tax. The demand raised by the revenue, in the given ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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