2018 (9) TMI 1498 - AT - Service Tax

Outdoor Catering Services - case of appellant is that they are not involved or engaged in serving of the food which is an important element in the case of catering service - Held that - Service tax has been charged on the entire amount received by the appellant from their customers including the amount for supply of tiffin boxes or supply of food from base kitchen which would not be covered by the definition of catering service. However, the appellant are also engaged in cooking the food at the customer s premises and also booking orders for tent, decoration, serving of food etc. The question as to whether there is evidence indicating that the appellant were also engaged in serving of food at the customer s premises where they were cooking the food, can be examined only at the level of Original Adjudicating Authority, for which purpose matter is remanded to Original Adjudicating Authority - appeal allowed by way of remand.

Summary

Issues:
Service tax demand on outdoor catering service under Section 65 (105) (ZZt) read with Section 65 (76a) of the Finance Act, 1994. Appellant's activities not falling under the definition of outdoor catering service. Appeal against penalties imposed under Section 76 and 78 ibid.

Analysis:
The judgment pertains to a case where the Additional Commissioner confirmed a service tax demand against the appellant for providing outdoor catering services chargeable to Service Tax under specific sections of the Finance Act, 1994. The order included penalties under Section 76 and 78 ibid. The Commissioner (Appeals) upheld this decision, leading to the current appeal.

The appellant argued that their activities, such as supplying tiffin boxes, cooked food, cooking at customer premises, and booking orders, do not fall under the definition of outdoor catering service. They highlighted that they are engaged in sale of food or cooking, not serving food, which is essential for catering services. The appellant also disputed the calculation of the service tax demand, pointing out discrepancies in the amount claimed.

The Revenue countered the appellant's arguments, emphasizing that the appellant's activities did involve serving food, contrary to the appellant's claims. After hearing both sides and examining the records, the Tribunal noted that while some of the appellant's activities might not qualify as catering services, they were also engaged in cooking at customer premises and other related services.

The Tribunal decided to set aside the impugned order and remand the matter to the Original Adjudicating Authority for a fresh decision. This was to verify if the appellant indeed served food at customer premises and to address the appellant's claim of transaction discrepancies. The Tribunal ensured the appellant would have a fair opportunity to present their case and refer to relevant precedent decisions during the re-examination. All other issues were left open for further consideration.

In conclusion, the appeal was disposed of with the direction for a de novo decision by the Original Adjudicating Authority, allowing the appellant a chance to clarify their position and address the discrepancies in the service tax demand calculation.