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TMI Blog2018 (9) TMI 1663X X X X Extracts X X X X X X X X Extracts X X X X ..... e company to check whether the food is sufficient, it can be overseeing the activity of sale of food. But this cannot be considered as catering to the service of the customer. Identical issue decided in the case of M/S AMBEDKAR INSTITUTE OF HOTEL MANAGEMENT VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, CHANDIGARH [2015 (9) TMI 163 - CESTAT NEW DELHI], where it was held that Since the appellant are preparing mid day meals in their Institute and not in the schools where the meals are served are not involved in serving of the meals in any manner, in our view they are not covered by the definition of "outdoor caterer" and hence their activity of preparing and supplying meals for mid day scheme would not be covered by the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand service tax along with interest from January 2005 to March 2007 along with interest and for imposing penalties. After due process of law, the original authority confirmed the demand in the show cause notice along with interest and imposed penalties. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 3. On behalf of the appellant, ld. counsel Shri N. Viswanathan opened his argument by adverting to the definition of outdoor catering service under section 65(76a) of the Finance Act, 1994. He submitted that the appellant is running a hotel and they only supply food to M/s. Mitsubishi. It is sale of food and they make their own arrangements for the transportation of the food to M/s. Mitsubishi. The appellants are not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court has observed that outdoor catering service is clearly distinguishable from the service rendered in a restaurant or a hotel. The decision in the case of Ambedkar Institute of Hotel Management Vs. Commissioner of Central Excise 2015 (40) STR 823 was relied by the counsel to state that only when the activity involves serving of meals, it would be covered under outdoor catering service. In para 1.6 of F. No. 334/3/2011-TRU dated 28.2.2011, the Board has clarified that levy on restaurant service is intended to be confined to the value of services contained in the composite contract and shall not cover either the meal portion or mere sale of food by way of pick-up or home delivery. The appellant is only selling food and deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 6.1 The main contention put forward by the ld. counsel for the appellant is that the activity is only sale of foods involving delivery at the premises of M/s. Mitsubishi. It is also stated by them in their reply to the show cause notice that M/s. Mitsubishi has engaged casual labourers for serving food to the employees/workers. In fact, the original authority has held the activity to be outdoor catering service for the mere reason that the brother of the appellant R. Suresh or some other worker of the hotel also go to the company to oversee the activity. The department is of the view that sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... method and manner of decorating and organising the mandap. The mandap-keeper provides the customer with advice as to what should be the quantum and quality of the services required keeping in view of the requirement of the customer, the nature of the event to be solemnized etc. In fact the logistics of setting up, selection and maintenance is the responsibility of the mandap-keeper. The services of the mandap-keeper cannot possibly be termed as a hire purchase agreement of a right to use goods or property. The services provided by a mandap-keeper are professional services which he alone by virtue of his experience has the wherewithal to provide. A customer goes to a mandap-keeper, say a star hotel, not merely for the food that they will pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the present case, it is very much clear from the facts that the appellant is merely delivering the food to the company and there is no service element involved. The decision in the case of Ambedkar Institute of Hotel Management (supra) has considered a similar issue, wherein it was observed as under:- 6. We have considered the submissions of both the sides and perused the record. From the facts stated in the show cause notice as well as in the order-in-original, it is seen that the appellant are preparing the meals as per the fixed menu which are to be served in various schools of Chandigarh Administration under the Mid Day Meal Scheme of the Government. Neither there is any allegation nor there is any evidence to show that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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