2014 (10) TMI 58

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..... s separate order for these items. These items, however, are incapable of deduction from the item of food, Thali and that is how the argument on the second point has been rejected - Tribunal's order on the Appeal as also on the Rectification Application does not answer the issues raised and particularly why the revenue has not been able to collect the taxes or the assessee was justified in arguing that in all the bills the standard thali does not include anything over and above the vegetables and other ingredients. The charge is separately levied for farsan, salad, papad and curd - In these circumstances, whether the Tribunal's approach can be said to be justified is something which this Court will have to consider in depth and in details - .....

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..... ly to the tune of ₹ 74,478/- i.e. on the footing that the food items namely thali is charged separately under the heading thali but without the usual contents thereof. The charge is shown separately for vegetable, farsan and salad. That is how the Assessing Officer proceeded and upheld the issuance of the notice. 5. The matter was carried in appeal to the First Appellate Authority where the assessment order came to be upheld. Thereafter the matter was carried to the Tribunal. 6. The argument before the Tribunal was that the case of M/s. Sabar Vegetarian Restaurant V/s. The State of Maharashtra, Appeal No.97 of 1998 decided on 8th January, 1999 is distinguishable and the ratio thereof could not have been applied as the sales affe .....

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..... these circumstances, whether the Tribunal's approach can be said to be justified is something which this Court will have to consider in depth and in details. Therefore, we admit this application on the following questions: (i) Whether on the basis of facts, documents and evidence available on record the Tribunal was justified in concluding that there was artificial bifurcation of sale price of Thali? (ii) Whether the Tribunal was justified in ignoring the facts and circumstances of the case especially the facts of the notification retrospective amendment for the purpose of grant of remission from interest and deletion of penalty? 10. We direct the Tribunal to forward the above questions for opinion of this Court by ma .....

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