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TMI Blog2009 (8) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of the decision of LSG Sky Chefs (India) (P.) Ltd. v. CST 2008 -TMI - 31076 - CESTAT BANGLORE, in which held that supply of food/beverage to airline would amount to sale of the goods and since assessee had already paid VAT on value of goods thus no service tax levied, Held that- in view of the issue in appellant’s own case, settled in their favour, impugned order is not sustainable and is liable to be set-side and the appeal is allowed. - ST/499 OF 2009, ST/STAY/302 OF 2009 - 1156 OF 2009 - Dated:- 31-8-2009 - M.V. RAVINDRAN, JUDICIAL MEMBER AND P. KARTHIKEYAN, TECHNICAL MEMBER G. Shiva Dass and G. Venkatesh for the Appellant. V. Raja Ram for the Respondent. ORDER M.V. Ravindran, Judicial Member. - This stay and appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit and reiterate the findings of the Adjudicating Authority on the issue. 7. We have considered the submissions made at length by both sides and perused the records. The contention of the learned Counsel that an identical issue in respect of the very same appellant is decided by us in Appeal No. ST/425/2007 is correct. On perusal of the said reported case law, we find that the period involved in that case is from 10-9-2004 to 31-3-2006 and the category of service under which the service tax demanded is "Outdoor Catering Services" as defined under section 65(76a) of the Finance Act, 1994. The current appeal before us is for the period from February 2005 to March 2008. The ratio of the decision in the appellant's own case is squarely appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for food/beverages, the appellant has been paying value added tax (VAT) under the laws of the Karnataka Government. In our view, the learned Commissioner has not properly appreciated the import of Article 366(29A), which provides for Sales Tax on the food supplied by any caterer. It is very clear that once in a contract there are components of services and supply of goods and the Service Tax can be only on the service component and where the goods are involved and where sales tax is paid, then simultaneously Service Tax cannot be demanded. This position has been brought out in the decisions of the Tribunal. Anyhow, the Hon'ble Supreme Court in the case of Imagic Creative (P.) Ltd. v. Commissioner of Commercial Taxes 2008 (9) STR 337 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach of the assessing authority, to us, thus, appears to be correct.' In view of the clear-cut decision, the department cannot charge Service Tax on the cost of the food/beverages supplied to the airlines. From the records, it is very clear that these costs are separable and can be identified. In these circumstances, the Commissioner ought to have given them the benefit of Service Tax Notification No. 12/2003. He had not examined them but he has simply stated that they have not fulfilled the conditions. 6.1 In our view, the following position emerges : (i) In view of the various decisions of the Hon'ble Kerala High Court, the appellant would indeed be liable to Service Tax under the category of 'Outdoor Caterer Services'. (ii) I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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