9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (4) TMI 407 - HC - Service TaxDemand of Service tax - Outdoor catering service - Assessee paying Vat and Sales Tax - Whether assessee liable for services tax when he is already paying VAT - Held that - the assessee is a caterer. The assessee is a person who supplies food, edibles and beverages for a purpose. The purpose is to cater to persons who use the facility of a canteen which is provided by NTPC or, as the case may be, by LANCO within their own establishments. NTPC and LANCO have engaged the services of the assessee as a caterer. The assessee is an outdoor caterer because the services which he provides as a caterer are at a place other than his own. The place is provided by NTPC and LANCO. The inclusive part of clause (76a) expands the definition to a place provided by way of tenancy or otherwise by the person receiving such services. NTPC and LANCO have engaged the services of the assessee as an outdoor caterer and the assessee is an outdoor caterer because services in connection with catering are provided by it at a place other than a place of the assessee. We find no merit in the contention that since the assessee is liable to pay Value Added Tax on the sale involved in the supply of goods at the canteen, it is not liable to the payment of service tax. The charge of tax in the cases of VAT is distinct from the charge of tax for service tax. Entry 54 of the State List to the Seventh Schedule to the Constitution empowers the state legislatures to impose a tax on the sale of goods. Article 366 (29A) was introduced by the Forty Sixth Constitutional Amendment so as to provide a deeming definition of the expression sale to comprehend situations within the purview of its several sub-clauses including the sale of goods involved in the execution of a works contract. The charge of service tax is not on the sale of goods but on a taxable service provided. Unlike a tax which is imposed on the sale of goods, the charge of service tax is on the provision of a taxable service provided by the assessee. Hence, the fact that the assessee may be paying VAT on the sale of goods on the supply of food and beverages to those who consume them at the canteen, would not exclude the liability of the assessee for the payment of service tax in respect of a taxable service provided by the assessee as an outdoor caterer - However, penalty imposed is set aside - Decided partly in favour of assessee.
Issues Involved:
1. Liability to pay service tax under the definition of "outdoor caterer." 2. Distinction between sale of goods and provision of services for tax purposes. 3. Legality of the imposition of penalties under Section 78 of the Finance Act, 1994. Detailed Analysis: 1. Liability to Pay Service Tax as an Outdoor Caterer: The core issue was whether the appellant's activities fell under the definition of "outdoor catering services" as per Section 65 (76a) of the Finance Act, 1994. The appellant argued that they were merely selling goods (food and beverages) directly to individual customers in the canteens and were not providing any service to NTPC or LANCO. However, the court found that the appellant was indeed an "outdoor caterer" because: - The appellant supplied food, edibles, and beverages in NTPC and LANCO's canteens. - The services were provided at a place other than the appellant's own, which is a key criterion for being classified as an "outdoor caterer." The court emphasized that the taxable event for service tax is different from that for VAT. The fact that the appellant paid VAT on the sale of goods did not preclude the liability for service tax. The court clarified that the provision of a taxable service by an outdoor caterer is distinct from the sale of goods, and both can be subject to their respective taxes. 2. Distinction Between Sale of Goods and Provision of Services: The appellant contended that since they paid VAT on the supply of food and beverages, they should not be liable for service tax. The court rejected this argument, stating that: - VAT is levied on the sale of goods under Article 366 (29A) of the Constitution, while service tax is levied on the provision of services under the Finance Act, 1994. - The two taxes are distinct and can be levied simultaneously on different aspects of the same transaction. - The court cited the Supreme Court's decision in K. Damodarasamy Naidu & Bros. Vs. State of Tamil Nadu, which supports the principle that a tax on the supply of food and drink is not a tax on service, thus reinforcing the distinction between VAT and service tax. 3. Legality of the Imposition of Penalties: The court examined whether the penalty under Section 78 of the Finance Act, 1994, was justified. Section 78 imposes penalties for non-payment of service tax due to fraud, collusion, willful misstatement, suppression of facts, or contravention of any provisions with intent to evade tax. The court found that: - The CESTAT did not discuss whether the fundamental conditions for imposing a penalty under Section 78 were met. - There were conflicting judicial decisions on whether similar activities fell under "outdoor catering services," which indicated a lack of clarity in the law. - Given the existence of contrary views, the court concluded that the essential ingredients for imposing a penalty were not fulfilled. Conclusion: The court concluded that: - The appellant was liable to pay service tax as an outdoor caterer under Section 65 (105) (zzt) read with clauses (24) and (76a) of the Finance Act, 1994. - The distinction between VAT and service tax was upheld, and both could be levied on different aspects of the same transaction. - The penalty under Section 78 was not justified due to the lack of clear evidence of fraud, collusion, willful misstatement, or suppression of facts. The appeal was disposed of with no order as to costs.
|
