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TMI Blog2021 (11) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent ORDER PER: SANJIV SRIVASTAVA These appeals are directed against Orders-in-Original No. MUM/CGST-MW/COMMR/19/2017-18 and No. MUM/CGSTMW/ COMMR/20/2017-18 dated 28.11.2017 passed by the Commissioner of Central GST, Mumbai West. By the impugned orders Commissioner has held as follows:- Order in Original No. MUM/CGST-MW/COMMR/19/2017-18 dated 28.11.2017 ORDER 53.1 I confirm, in terms of Section 73(2) of the Finance Act, 1994, demand of Service Tax amounting to ₹ 22,79,62,375/- (Rupees Twenty Two Crore Seventy Nine Lakh Sixty Two Thousand Three Hundred Seventy Five only) on the taxable value of the Outdoor Catering Service provided for the period 22.10.2013 to 31.03.2016 amounting to Rs. ₹ 174,27,35,557/-, made in the Show Cause Notice under Section 73(1) of the Finance Act, 1994, by invoking the proviso clause thereto, as payable by M/s. Sodexo Facilities Management Services Pvt. Ltd., Mumbai 400 064 and order recovery of the said amount; 53.2 I order recovery of statutory interest at appropriate rate on the amount of Service Tax demand confirmed at Para 53.1 above from M/s. Sodexo Facilities Management Services Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r only) on M/s. Sodexo Facilities Management Services Pvt. Ltd., Mumbai 400 064, under the provisions of Section 78 of the Finance Act, 1994. However the notice shall be eligible to benefit of a reduced penalty @ 25% of the said total amount provided the entire amount of service tax, interest thereon and the reduced amount of penalty is paid within 30 days from the date of receipt of this order, under the provisions of 78B ibid. 53.5 I impose personal penalty of ₹ 1,00,000/- (Rs. One Lakh only) on Shri Mohanan Nambisan, Vice President Finance Taxation of M/s. Sodexo Facilities Management Services Pvt. Ltd., under Section 78A of the Finance Act, 1994. 2.1 The appellants were providing outdoor catering services to various factories/business entities in Mumbai as well as in other places across the country and were paying service tax on outdoor catering services prior to October 2013 and stopped paying service tax on the value of outdoor catering services so provided after availing exemption under Notification No.14/2013-ST dated 22.10.2013, wherever the number of workers were more than 250 in a factory. They continued to pay service tax where the number of workers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1994 read with Rule 6 7 of the Service Tax Rules, 1994 with intent to evade payment of Service Tax, as discussed above. 43. Shri Mohanan Nambisan, Vice President Finance of M/s. Sodexo Facilities Management Services India Pvt Ltd. situated at 1st Floor, Gem Star Commercial Complex, Ramachandra Lane Extension, Kanchpada, Malad West, Mumbai-64 is hereby required to Show Cause to the Commissioner of Service Tax, Mumbai-VI, as to why Penalty under Section 78A of the Finance Act, 1994 should not be imposed on him for his role in the non compliance and contraventions as elaborated in Para 44 above. Show Cause Notice dated 22.06.2017 42. Now, therefore, M/s. Sodexo Facilities Management Services Pvt. Ltd. situated at 1st Floor, Gem Star Commercial Complex, Ramachandra Lane Extension, Kanchpada, Malad West, Mumbai 64, are called upon to show cause to the Commissioner of Service Tax, Mumbai-VI, Mahavir Vidyalaya, CD Burfiwala Lane, Juhu Gali, Andheri (West), Mumbai-400020, within thirty days of receipt of this notice, as to why- i. the activity of supply of food and beverages to the recipient factories/industrial establishments claimed to be a service provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was allowed by Miscellaneous Order No. M/85257-85258/2021 dated 16.08.2021. 3.1 We have heard Shri Prasad Paranjape, Advocate, for the appellants and Shri Nitin M. Tagade, Joint Commissioner, Authorised Representative, for the Revenue. 3.2 Arguing for the appellants, learned counsel submits that the issue involved in the matter is no longer res integra and has been decided in favour of the appellants by following decisions:- ICS Food Pvt. Ltd. [2018 (7) TMI 1061 CESTAT (All.) ICS Food Pvt. Ltd. [2019 (1) TMI 1837 SC Sai Food Services [2020 (2) TMI 1394 CESTAT MUMBAI The decision of the Tribunal in the case of ICS Food Pvt. Ltd. has been affirmed by the Hon ble Supreme Court. Against the order of Commissioner (Appeal), appellant had gone before the Bombay High Court as Commissioner (Appeal) decided the issue contrary to the decisions rendered by this Tribunal in case of ICS, Bombay High Court, remanded the matter back to Commissioner (Appeal) for deciding the issue after taking into consideration the decision in case of ICS. [Sodexo India Services Pvt. Ltd. [2021 (7) TMI 648 BOM HC] In the matter on remand by the Hon ble Bombay High Court, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services of serving food and maintaining the canteen located in the factory, belonging to M/s. Ceat Ltd., the benefit of service tax exemption as per the above referred notification should be available to it. 6. We find that on an identical situation, this Tribunal in the case of M/s ICS Food Pvt. Ltd. (supra) has set aside the demand and allowed the appeal in favour of the said party, holding that canteen maintained by the outdoor caterer should fall under the purview of Entry No. 19A and service tax exemption cannot be whittled down. We also find that appeal filed by Revenue against the said order of the Tribunal was dismissed by the Hon ble Apex Court vide judgment dated 03.01.2019, referred supra. The ratio of decisions (supra) relied upon by the learned AR for Revenue are distinguishable from the facts of the present case inasmuch as the issue involved in those decided cases relates to levy and payment of service tax on the impugned service and not on the issue of availment of the exemption benefit provided under the above referred notifications. 7. In view of the foregoing discussions, we do not find any merits in the impugned order. Accordingly, by setting aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tchen utensils, electricity, water, and cooking gas etc., to the appellant. The service so provided per se are in the nature of outdoor catering services as it has been provided from the place other than that of the appellant. Consideration is paid directly by the factory to the caterers. Maintaining canteen for employees is a statutory requirement under the Factories Act for certain category of factory and outsourcing the same is not barred under the Act ibid and Rules made thereunder. In the circumstances, if the Notification is interpreted to mean that exemption will be available only when the canteen is run by factory, such interpretation will be doing violence to the language of the Statute and in fact will amount to adding words in the Notification which is not permitted under established law. Further such interpretation may result in taxing of the services received by the factory employees as the service provider is receiving consideration only from the factory. Such an interpretation is neither mandated nor intended under the Notification. 5. Based on the provisions of Section 66F(1) of the Act it is also alleged that the main service i.e. canteen service is exempted u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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