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TMI Blog2022 (5) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... ces under the category of Customer care services provided on behalf of the client under Section 65(11) of the Finance Act, 1994 . Penalty u/s 76 and 78 of FA - HELD THAT:- This is not the case where the issue was under litigation or there is any interpretation of law involved for the reason that all the judgments relied upon by the appellant are on different facts and accordingly the demand of extended period is sustainable - As regard penalty imposed under Section 76 and 78, simultaneous penalty under Section 76 and 78 cannot be imposed. Therefore, the penalty imposed under Section 76 is set aside. Other penalties and interests to the extent demand was sustained is also sustainable. Outdoor catering services - HELD THAT:- Various facts has not been examined in the impugned order by the Ld. Adjudicating authority - the impugned order as regard the said issue is set aside and matter is remanded to the adjudicating authority to consider aforesaid aspects and pass a fresh order, after following the Principle of Natural Justice such as considering the submissions made/to be made by both the parties and granting the sufficient Personal hearing. Appeal allowed in part and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalties. Hence assessee and Revenue both are before this Tribunal. 3. Shri Nilesh V Suchak, Learned Chartered Accountant appearing for the appellant submits that Learned Commissioner has erred in confirming the demand on bed roll kits considering the same as taxable service under the category of Business Auxiliary Service. IRCTC is a Govt. of India Enterprises and it had vide letter dated 2.01.2009 categorically written to the Assistant Commissioner, Anti Evasion, in response to its letter dated 02.05.2008 that service tax is not applicable on work providing bed rolls as customer care service under the category of Business Auxiliary Service within the meaning of Section 65(19) of the Act. It was independent wok and has not been included as a taxable service in the Act. 3.1 The term on behalf of means representing someone to a third party. Hence on behalf if is used only in situation where there are three parties in the arrangement and one is representing another to third party. This view also supported by CBEC Clarification vide paragraphs 18.2 of the Circular No. 80/10/2004-ST dated 17.09.2004. In their case they are granted license (permission) to merely supply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi 2017(5) GSTL 324 (Tri. Del) passed by the Hon ble CESTAT wherein the Ho ble CESTAT held that such service are more appropriately classifiable under business auxiliary Service under the category of Customer care services provided on behalf of the client under Section 65(11)of the Finance Act 1994. 4.1 In respect of demand dropped by the adjudicating authority, he reiterated the grounds of appeal filed by the revenue and submit that the show cause notice alleges that the valve of catering service has been considered as sale of MRP goods which amount to diversion of taxable value in the books. The adjudicating authority has not addressed this issue at all in his findings. Shri Kishorebhai Hakamichand Chotai, Partner of Appellant s firm in his statement has agreed that to the facts that they had considered some of their purchase like bred, vegetable, fruits and eggs towards re-sales while actually the same were part of the catering services. They have not been able to explain the gross difference in the taxable values declared for catering and re-sale in their books of accounts and taxable value arrived by department on the basis of actual MRP sales. Therefore, it appears t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner from liability for Service tax under Central legislation - Since service of food and beverages by caterers to aircraft amounts to sale of goods as well as rendering of service, both Service tax and sales tax under impugned provisions can be levied on very same transaction. The same may be goods (food) but involve service also (preparation of food and taking it to the passenger in the train) 5. We have considered the submissions made by both the sides and perused the records. The following issues have to be decided. (i) Whether the appellant is liable to pay service tax on supply of bedrolls kits to the passengers in trains under the head business auxiliary services (ii) Whether the appellant is liable to pay service tax on outdoor catering services on the sale of breakfast, meals, package foods items and beverages in the trains. 5.1 We now deal with the above issues and decide - (i) Supply of bed rolls under the head business auxiliary services It is the case of the Revenue that such supply of bed rolls kits amount to supplying services to IRCTC and the same is chargeable to service tax under the head of business auxiliary services. For each su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said services rendered by Appellant for an on behalf of IRCTC to passengers in the nature of a customer care service . Therefore we are of the view that such services appropriately classifiable under business auxiliary services under the category of Customer care services provided on behalf of the client under Section 65(11) of the Finance Act, 1994 . As regards judgment of General Pre cured Treads Pvt. Ltd. supra relied upon by the Learned Counsel, we find that the said judgment is on different facts. Therefore, the ratio of the same is not applicable. As per our above discussion we are of the considered view that the impugned order is sustainable on the above issue. We also find that this is not the case where the issue was under litigation or there is any interpretation of law involved for the reason that all the judgments relied upon by the appellant are on different facts and accordingly the demand of extended period is sustainable. As regard penalty imposed under Section 76 and 78, we are of the view that simultaneous penalty under Section 76 and 78 cannot be imposed. Therefore, the penalty imposed under Section 76 is set aside. Other penalties and interests to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax leviable thereon under section (66) of the said Act, subject to condition that there is documentary proof specifically indicating the value of the said goods and materials. Provided that the said exemption shall apply only in such cases where (a) no credit of duty paid on such goods and materials sold, has been taken under the provisions of the Cenvat Credit Rules, 2004; or (b) where such credit has been taken by the service provider on such goods and materials, such service provider has paid the amount equal to such credit availed before the sale of such goods and materials. . 78. We find that they are selling packed foods items and beverages on various train services on Indian Railways, and a-al-carte items on M.R.P. basis as per their agreement with railways to the passengers. I find that no credit of duty paid on such goods and materials sold to the passengers has been taken under the provision of the Cenvat Credit Rules, 2004. 79. Since the goods have been sold on the train, the benefit of notification becomes available. It has been ascertained that no cenvat credit has been taken. The condition of documentary proof specifically indic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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