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TMI Blog2024 (7) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... the rates agreed therein applicable service tax is discharged on the rent component of the consideration. Under "Mandap Keeper Service" and on sale of food, the appellant has discharge the applicable VAT but did not pay any service tax thereon. The amount charged towards sale of food in such composite agreements was 40% upto 30.06.2012 and thereafter 30%. 2.1 The appellant also collects electricity charges from the tenants of the space let out by the appellant for food courts on re-imbursement basis at actuals. Apart from the above, the appellant also collected "permission charges" from small vendors for the use of common open area in various malls. An audit was conducted and thereafter, a showcause notice dated 23rd October, 2013 was issued alleging that the appellant has raised separate invoices for the banquet hire and sale of food against a single composite agreement but has discharged service tax under Mandap Keeper Services only on the banquet hire and not on the supply of food. It is also alleged that appellant has collected electricity charges from tenants of outlets and permission charges from small vendors for use of common open premises of their mall but has not dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity is exempted from payment of service tax. 3.4 He also submits that in the facts and circumstances of the case, the extended period of limitation is not invokable. 4. On the other hand, the ld.A.R. for the Revenue supported the impugned order. 5. Heard both the parties and considered the submissions. 6. We find that the demand has been raised against the appellant under two counts, (a) short-payment of service tax under "Mandap Keeper Service". The contentions of the appellant are that as per their agreement, the sale of food and rental of banquet halls, are shown separately and the sale of food is the activity of sale, on which, no service tax is payable. 7. We find that as per the agreement and invoice raised by the appellant, the service charges with regard to "Mandap Keeper Service" , invoice has been raised separately and for sale of food, the invoice has been raised separately. In the invoice service, the appellant has paid service tax for Mandap Keeper Service and in the invoice for sale of food the appellant has paid VAT and as per the copy of agreement, the rental charges for halls are mentioned separately and the rates of food are also shown separately. For better ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxing entries, this would not bring within its purview a tax on subject matter which a fair reading of the entry does not cover. If in substance, the statute is not referable to a field given to the State, the Court will not by any principle of interpretation allow a statute not covered by it to intrude upon this field." We are fortified in our above finding by the following observations of the Hon‟ble Apex Court in the case of Imagic Creative Pvt. Ltd. v. Commissioner of Comml. Taxes [2008 (9) S.T.R. 337 (S.C.)] :- "Payments of service tax as also the VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract as contradistinguished from an indivisible contract. It may consist of different elements providing for attracting different nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract; irrespective of the element of service provided." 6 These observations apply equally to exigibility of goods, supplied in the course of provision of service under a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, currency or denomination for which a separate consideration is charged; Explanation 3. - For the purposes of this Chapter,- (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Explanation 4. - A person carrying on a business through a branch or agency or representational office in any territory shall be treated as having an establishment in that territory; We find that as per Section 65B (44) (a) (ii), supply of goods which is deemed to be sale is excluded from payment of service tax. Admittedly, on the basis of the foods supplied by the appellant has paid VAT holding that the same is sale of food, therefore, in terms of Section 65B of Finance Act, 1994, the appellant is not liable to pay service tax on the value of foods supplied. 9. In view of the above, the demand on account of service tax is set-aside. As the facts of this case are similar to the facts of Hyatt Resorts Private Limited (supra) wherein it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise Pune. III vide Order-in-Original dated 28.11.2011 relied upon by the appellants dropped the proceedings which were initiated on the same ground in the case of M/s. Panchshil Tech Park Ltd. The Commissioner of Central Excise in the adjudication order held that electricity is goods and chargeable to Nil excise duty. The decision of the adjudicating authority is accepted by the Revenue as per the communication dated 26.9.2012 by the Commissioner of Central Excise, Pune. III. The present appellants are also under the jurisdiction of Pune III Commissionerate." 11. Therefore, we hold that the electricity charges are not liable to service tax. 12. In view of this, we hold that except the admitted demand which has been paid by the appellant along with interest, no other demand is sustainable against the appellant. 13. Therefore, the impugned order qua demanding service tax on account of short payment of service tax under the category of "Mandap Keeper Service" and the service tax on electricity charges, is not sustainable and hence, set aside. In the facts and circumstances, no penalty is imposable on the appellant. 14. In view of the above, the appeal is dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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