2015 (6) TMI 379 - AT - Service Tax

Waiver of pre deposit - outdoor catering service - tiffin food prepared in the appellants premises was supplied in boxes to the premises Shri Ramswaroop Memorial College of Engineering & Management, Lucknow - Held that - Appellants prima facie fall under the scope of outdoor caterers as they provided service of supplying food (prepared at their premises) at a place other than their own. The judgement of Delhi High Court referred to by them, prima facie, does not seem to remain good law in the wake of say the Supreme Court judgements in the case of L & T Ltd. Vs. State of Karnataka - 2013 (9) TMI 853 - SUPREME COURT . We find that the appellants have duly been given the benefit of abatement while arriving at the impugned service tax liability. Thus, in the given circumstances, the appellants have not been able to make out a prima facie case in their favour - Partial stay granted.

Summary

Issues:
1. Whether the appellants fall under the category of outdoor caterers providing catering services.
2. Whether the judgment of Delhi High Court regarding the sale of goods versus service is applicable in this case.
3. Determination of pre-deposit of service tax liability pending appeal.

Analysis:

1. The main issue in this case is whether the appellants can be classified as outdoor caterers providing catering services. The Commissioner (Appeals) referred to the definitions of "outdoor caterer" and "caterer" under the Finance Act, 1994. The appellants prepared food at their premises and supplied it to a different location, which falls under the definition of outdoor catering service. The Tribunal found that the appellants indeed provide services as outdoor caterers based on the facts presented.

2. The appellants argued that they were merely selling food and not providing catering services. They cited a judgment of the Delhi High Court regarding the levy of sales tax on the sale of goods versus services provided. However, the Tribunal noted that the judgment cited by the appellants may not be applicable in this case, especially considering other legal precedents such as the Supreme Court judgment in L & T Ltd. Vs. State of Karnataka. The Tribunal found that the appellants did not establish a strong case in their favor regarding the nature of their services.

3. Regarding the determination of pre-deposit of the service tax liability pending appeal, the Tribunal ordered the appellants to pre-deposit the entire adjudicated service tax liability along with interest within six weeks. The Tribunal granted a stay on the recovery of the remaining liabilities during the appeal process, subject to compliance. Failure to make the pre-deposit would result in the dismissal of the appeal for non-compliance.

In conclusion, the Tribunal upheld the classification of the appellants as outdoor caterers providing catering services, dismissed the applicability of certain judgments cited by the appellants, and ordered the pre-deposit of the service tax liability pending appeal.