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TMI Blog2021 (9) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Aalok Arora, Advocate for the Appellant Shri B. K. Jain, Authorised Representative for the Respondent ORDER The issue in this appeal is whether the appellant-assessee hotel, also providing restaurant service, whether they are liable to service tax on the food served in the rooms, under the head restaurant service . 2. The appellant is engaged in providing short term accommodation in hotel as well as restaurant service. The officers of Central Excise Service Tax, Audit Circle, Agra, conducted audit of the appellant s record on 24.10.2017 to 25.10.2017 for the period 2012-13 to 2016-17, and observed that the appellant did not pay service tax on food supplied by them to their guest in hotel room. Show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any service tax. In support of the contention, reliance is placed on the judgment of this Tribunal in the case of CCE Jaipur-I vs. Choki Dhani Resorts Pvt. Ltd., -2017 (50) STR 168 (Tri. Del.), wherein it has been held payment of VAT to State Government on sale of food and beverages to customers indicating that supply of good was an independent activity, thus two taxes, i.e. VAT and service tax cannot be levied on same value. 6. He also urges that sale of goods (food) in the present case has been excluded from definition of service under Clause (44) Section 65B of Finance Act, 1994, as such no service tax is leviable in the present facts and circumstances of the case, hence appellant is not liable for any service tax. Also relies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar to delivery of food from the hotel/kitchen counter, to the purchaser. I further hold that there is no element of service involved in delivering of food from hotel kitchen, to the guest in room. It is totally different from food served in the restaurant by the hotel, where in addition to the food the element of service is involved by way of music, quality of service, entertainment and overall ambience etc. Accordingly, learned Counsel for the appellant prays for allowing of the appeal. 8. Learned Authorised Representative appearing for the Revenue relies on the findings in the impugned order. 9. Having considered the rival contentions, I find that the issue is squarely covered in favour of the appellant by the Circular of the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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