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TMI Blog2018 (10) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act would also mean a reference to the same provisions under the Tamil Nadu Goods and Service Tax Act. M/s. Sodexo Food Solutions India Private Limited, 5th Floor, Block 6A, Centennial Square, off. Dr. Ambedkar Road, Murugesan Nagar, Kodambakkam, Chennai-600024 (hereinafter referred to as 'applicant' or 'Sodexo) is engaged in the business of providing catering services, facility management services and other services to customers across India in the manufacturing sector, services industry sector and remote locations including off-shore oil r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f food and beverages to the employees or visitors who visit the canteen, cafeteria or similar premises (belonging to the customer); The consideration for food and beverages is charged to the employees or visitors.; The food and beverages sold could either be (a) sale of MRP based products (such as biscuits. chocolates, chips, etc) across the counter, in pre packaged form or (b) sale of food and beverages which are prepared, such as dosa, tea, coffee, etc (referred to as 'cash sales' or 'retail sale').; The canteens / cafeterias operate in a manner similar to a restaurant, eating joint or similar establishments. To illustrate, the canteens / cafeteria have a menu, they cook and serve food and beverages to the consumers who vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notification No. 46/2017 -CT (Rate) dated 14.11.2017] to the concerned educational institution and attracts GST of 5% provided that credit of input tax charged on goods and services used in supplying the service has not been taken with effective from 15.11.2017. "However, the GST rate for services provided by an outdoor caterer has been retained at 18%. There is no change in the taxable entry 7 (v) which relates to 'supply of food and beverages by way of or as a part of a service in outdoor catering'. In the press release issued by the Government along with this amendment, it has been stated that 'Outdoor catering continue to be at 18% with full ITC'. 2.2 Sodexo have stated that the option to pay 5% GST without ITC by res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd permanence and such establishments are not "outdoor catering".; They have relied on the decision of Hon'ble Supreme Court in the case of Tamil Nadu Kalyana Mandapam vs Union of India reported in 2004-TIOL-36-SC-ST, wherein vide Para 56, it had held the following in the case of Outdoor Caterers; "Outdoor catering has an element of personalized service provided to the customer. Clearly the service elements is more weighty, visible and predominant in the case of outdoor catering. It cannot be considered as a case of sale of food and drink as in restaurant". 2.4 Sodexo have further stated that on examining the classification of Food Services under the General Tariff Schedule under GST, it can be seen that Group 99633 deal with Food, Edible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, cafe, canteen, hotel etc. are just finer efficacies meeting the specific type of dispensation but the basic Rule of food getting prepared and served in that location on a continuous basis remains constant. The design of the Group under the GST Tariff appears to have clarity and even an unintended overlap stands avoided. It is a well settled principle of interpretation that in case of competing entries, specific would prevail over general and consequently canteen even if held to be outdoor caterer would continue to fall under 7 (i) instead of getting it consigned to 7 (v) of the Notification. 2.5 GST rate of 5% extended to Educational Institutions vide Circular of 8 Jan 2018 is violative of Article 301 of the Constitution of India. Circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave claimed that in view of the above, it would be critical to clarify that supply of food and beverages in factory canteens, offices, hospitals, offshore rigs by services providers such as Sodexo should also attract 5% GST so that there is no discrimination in the GST tax structure for supply of food and drinks in the normal course of trade, commerce and intercourse across the territory of India. 3.0 The applicant was heard in person. They stated that they have contracts with various institutions.; they have contracts with them for making food at client premises; in certain cases, the payment is received from visitors to premises, in other cases payment is received only from the institutions. They provided a write-up and undertook to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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