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TMI Blog2018 (6) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... as specifically a sale of goods, Appellant has already discharged the VAT liability thereof. The same cannot be the outdoor catering services - demand set aside - appeal allowed - decided in favor of appellant. - Service Tax Appeal No.ST/54205/2014 -CU [DB] - FINAL ORDER NO. 52308/2018 - Dated:- 26-6-2018 - HON BLE MR. V.PADMANABHAN, MEMBER (TECHNICAL) And HON BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) For the Appellant : Mr. Rachit Jain, Advocate For the Respondent : Mr. Amresh Jain, D.R. ORDER PER: RACHNA GUPTA Present is an appeal filed being aggrieved of the order of Commissioner in Adjudication dated 29th April, 2014 vide which Service Tax demand of ₹ 2,79,83,203/- has been confirmed for a period w.e.f. Apr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these arguments, the emphasis as has been laid by the appellant on the legal provisions is vehemently denied. It is submitted that however the Notification of the year 2006 provides for 50% abatement in the case of outdoor catering services, hence, the appellant is liable to pay the Service Tax including the value of food supplied and can avail the said abatement. The appeal is prayed to be disposed of, accordingly. 6. After hearing both the parties, we are of the opinion as follows:- 6.1 The 46th Amendment to the Constitution whereby Article 366(29A) was inserted in order to provide that the tax on sale or purchase of goods includes a tax on the supply by way of or as part of any other manner whatsoever of goods being food or any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatables/ drinks are the choice of the person who partakes the services. he is free to choose the kind, quantum and manner with the food is to be served. But the case of restaurant, the choice of food is limited to the menu card, for the customers. 6.5. Delhi High Court in the case of Indian Railways Catering and Tourism Corporation has held as under: 5A The transaction of supply of food, snack and water to passengers in the train is not an outdoor catering service. There is no choice for passenger and the cannot ask for a different item or more items or substitute items he has no role to play and hence there is no element of service except the heating of cooked food and serving the food and beverages. In fact the service component ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition to supply food. Apparently and admittedly, appellant is not serving the said food on board hence as far as supply of food is concerned property therein stands transferred the moment it is loaded on the air craft trolley. 10. In the result of the entire above discussion, we hereby held that since the appellant was simply supplying the food and was not serving the same to the passengers on board, it was specifically a sale of goods, Appellant has already discharged the VAT liability thereof. The same cannot be the outdoor catering services. For remaining services the appellant is discharging liability under service tax. The demand of Revenue in the given circumstances is not sustainable and the order under challenge is set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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