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TMI Blog2024 (6) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of "Take-Away" and "Home Delivery" under Restaurant Services. 2. The appellant was registered with Service Tax under the taxable category of 'Restaurant Service', 'Franchisee Service', 'Sponsorship Service', 'Business Auxiliary Services', ' Sale of Space or Time for Advertisement', 'Business Support Services', 'Works Contract Services', 'Manpower Recruitment or Supply Agency's Services', 'Transport of Goods by Road Service' and 'Security/Detective Agency Service'. 3. During the course of audit, the audit team observed that the appellant was providing Restaurant Service from the Restaurant having air conditioning facilities and had taken exemption on sale of food by way of "Take Away" or "Home Delivery" during the Financial year 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Haldiram Marketing Pvt. Ltd. (supra), the brief facts noted are that they were engaged in running food outlets, where packaged food items could be purchased and also availed restaurant dining facilities. Additionally, the appellant there also provided the facility of "Take Away " of food items. On audit, it was noticed that the appellant was providing services in respect of "Take Away" orders by way of preparing and packaging food items for the customers. The Tribunal, after considering the provisions of Section 65 B(44) read with 66E of the Finance Act also considering the Circular No.334/3/2011- TRU dated 28.02.2011 and the clarification issued thereafter on 13.08.2015 that the transaction involving "Pick-up" or "Home Delivery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified that service tax is not intended to cover sale of food that is collected or picked up for consumption elsewhere. ***** 26. Thus, not all services rendered by restaurants in the sale of food and drink are taxable and it is only certain specified situations that attract tax. The sale of food and drink simplicitor, services of selection and purchase of ingredients, preparation of ingredients for cooking and the actual preparation of the food and drink would not attract the levy of tax. Only those services commencing from the point where the food and drinks are collected for service at the table till the raising of the bill, are covered. This would encompass a gamut of services including arrangements for seating, décor, music ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices would not attract liability to Service tax. (Order in Appeal No.445 of 2018 dated 28.09.2018 passed by the Commissioner (Appeals), Chennai, Order in Appeal No.147 of 2019 dated 25.03.2019 passed by the Commissioner (Appeals), Coimbatore and Order in Appeal No.16 of 2020 dated 23.03.2020 passed by the Commissioner (Appeals), Coimbatore. In some cases, I am informed that appeals have not been filed by the Department and thus the prevailing view, even within the Department is that there would be no service tax liability on take away food." In view of the aforesaid observations, the Tribunal concluded that no service tax can be levied on the activity of "Take Away of food items as it amounts to sale and does not involve any element of se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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