No Service Tax can be levied on take-away/parcel food from restaurants

[CA Bimal Jain]

The CESTAT, New Delhi in HALDIRAM MARKETING PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS AND SERVICE TAX, GST DELHI EAST COMMISSIONERATE, NEW DELHI - 2023 (2) TMI 783 - CESTAT NEW DELHI has set aside the demand order passed by the Revenue Department. Held that, no Service Tax can be levied on the activity of take-away of food items as it would amount to sale of goods wherein, element of service such as dining facility, washing area and clearing of the tables are not involved. Further held that, permitting an associated enterprise to use a part of the premises for the sale of its product would not amount to sub-letting and would be considered as sharing of expenditure, which cannot be treated as service.

Facts:

Haldiram Marketing Pvt. Ltd. (“the Appellant”) is engaged in running food outlets where customers can either purchase packaged foods like sweets or namkeen or avail restaurant dining facilities. Further, the Appellant also provides the facility of ‘take-away’ of food items. An audit of the Appellant was conducted and it was noticed that the Appellant had failed to pay due Service Tax on the activity of takeaway of food items as well as on the share of rent received from the associated enterprise.

Consequently, a Show Cause Notice dated September 28, 2020 (“the Impugned SCN”) was issued proposing Service Tax demand of INR 23,09,45,317/- with interests and penalties. The Appellant had submitted a reply to the Impugned SCN asserting that it was not required to pay Service Tax on the activities and, therefore, the Impugned SCN should be dropped. However, the Assessing Authority passed an Order dated March 11, 2022 (“the Impugned Order”) confirming the demand of INR 20,12,46,762/- with interest and penalties and the demand of INR 2,96,98,555/- was dropped on account of cum-tax benefit.

Being aggrieved, this appeal has been filed.

The Petitioner contended that the transaction involving supply of goods on take-away basis is a pure sale transaction and does not entail any service element rendered to customers and hence, would be outside the purview of Service Tax. Further that, no Service Tax can be levied on the amount received from associated enterprise as it is towards sharing of space. Further, the Impugned SCN as well as the Impugned Order invoked obsolete provisions, thus, the demand cannot be sustained.

Issues:

1. Whether the take-away of food provided by the Appellant be liable to Service Tax?
2. Whether permitting an associated enterprise to use a part of the premises for the sale of the product would amount to sub-letting and, therefore, the consideration received would be leviable to Service Tax?

Held:

The CESTAT, New Delhi in HALDIRAM MARKETING PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS AND SERVICE TAX, GST DELHI EAST COMMISSIONERATE, NEW DELHI - 2023 (2) TMI 783 - CESTAT NEW DELHI held as under:

• Noted that, the Circular No. 334/3/2011-TRU dated February 28, 2011 (“the Circular”) issued states that the Service Tax levy was intended to be confined to the value of services contained in the composite contract and was not to cover either the meal portion of the composite contract or mere sale of food by way of pickup or home delivery. Further, the Clarification to the Circular issued on August 13, 2015 had clarified that, in case of transaction involving pickup or home deliveries of the food sold by a restaurant, the dominating nature of the transaction is that of sale and not service and hence, it will not be leviable to Service Tax, being in the nature of sale only.
• Relied on the judgment of the Hon’ble Madras High Court in ANJAPPAR CHETTINAD A/C RESTAURANT, M/S RSM FOODS (P) LTD, M/S. THALAPAKATTI HOTELS PVT. LTD, M/S PRASANAM FOODS (P) LTD. VERSUS JOINT COMMISSIONER, THE COMMISSIONER OF GST AND CENTRAL EXCISE, THE ADDITIONAL COMMISIONER OF GST AND CENTRAL EXCISE  - 2021 (6) TMI 226 - MADRAS HIGH COURT wherein it was held that, the provision of food and drink to be taken-away in parcels by restaurants tantamount to the sale of food and drink and does not attract Service Tax and noted that in take-away of food items Service Tax would not be leviable as it would be a case of sale.
• Observed that, the Appellant selling the food/packaged items over the counter would amount to sale of goods, wherein, services such as dining facility, washing area, clearing of the tables after the food has been eaten are, therefore, not involved.
• Set aside Impugned Order.
• Held that, no Service Tax can be levied on the activity of take-away of food items as it would amount to sale of goods and would not involve any element of service.
• Further held that, the Appellant permitting an associated enterprise to use a part of the premises for the sale of the product would not amount to sub-letting and would be considered as sharing of expenditure, which cannot be treated as service rendered by one to another.

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