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TMI Blog2013 (10) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent that the assessee was himself engaged in the preparation of food items in the company premises with all the infrastructure for such service having been provided to the service recipient - It was not the case of the assessee that the assessee, a co-operative society was itself engaged in preparing the food and serving the same to the NTPC or Lanco employees - It had deputed personnel to perform these services for the benefit of service recipients - In Raj Kumar Jain vs. CCE, Jaipur-I [2008 (8) TMI 62 - CESTAT NEW DELHI ] - the contention of the assessee was rejected to immunity to tax for having provided outdoor catering service on the ground that the assessee was providing outdoor services in the premises of the service recipient a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner, Central Excise, Allahabad is confirmed and the appeal preferred by the assessee, dismissed. 3. The appellant/ assessee is a Co-operative Society having its Head Office in Jabalpur, Madhya Pradesh. Under an agreement with the National Thermal Power Corporation Limited (NTPC), the assessee agreed to provide food to NTPC employees from a premises provided by NTPC under a license granted to the assessee in the NTPC premises at Rihand Nagar within the territorial limits of the Commissionerate at Allahabad. Revenue assumed that the assessee provided the taxable services as outdoor caterer, defined in 65(76a) read with Section 65(24) of the Finance Act, 1994. Proceedings were initiated by issuing a show cause notice dated 05.04.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee contended that it had not provided the taxable service. The adjudicating authority disagreed and levied tax and imposed interest and penalties. The appellate authority concurred with the adjudicating authority. 5. Section 65(24) of the Act defines a caterer to mean any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose or occasion. Section 65(76a) defines outdoor caterer to mean a caterer engaged in providing services in connection with catering at a place other than his own but including a place provided by way of tenancy or otherwise by the person receiving such services. During the relevant peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enge to the territorial jurisdiction of the adjudicating authority was addressed neither before the adjudicating authority, the appellate authority or even before this Tribunal, in the grounds of appeal. The issue whether the Allahabad Commissionerate had the jurisdiction is not a pure question of fact simplicitor. It is a mixed question of fact and law. Further, admittedly the outdoor catering services provided by the assessee were within the territorial limits of the Allahabad Commissionerate and cause of action for recovery of service tax due occurred within the territorial limits of the Allahabad Commissionerate. Section 21 of The Code of Civil Procedure (though not applicable to proceedings under the Finance Act, 1994) provides a guida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax and that in the circumstances the authorities below ought to have exercised the discretion under Section 80 to avoid levy of penalty. Reliance is placed on the judgment of this Tribunal in Rajeev Kumar Gupta vs. CCE, Jaipur 2009 (16) STR 26 (Tri. Del.) to contend that the entire facilities relating to maintenance of canteen including furniture, utensils, and also gas, electricity having been provided by the service recipient and the assessee having engaged himself merely in preparation and serving the food items at the company premises, which was held to fall outside the category of outdoor catering service and no tax liability enures. On the facts and the analysis set out in the decision in Rajeev Kumar Gupta it is apparent that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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