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TMI Blog2008 (5) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... araman, Sr. Advocate and S. Muthu Venkataraman, Advocate, for the Appellant, Shri T.C. Raja Dass, SDR, for the Respondent. [Order per: S.L. Peeran, Member (J) (Oral)]. - The appellant is a Hotel Industry. They cater to airlines. They are paying the Service Tax in respect of food, snacks, beverages supplied to the various airline companies. They are also covered under the Service Tax net in the category of "Handling and Transportation charges". The department proceeded against the appellants for recovery of Service Tax in respect of sale of food items made to the airlines. This is resisted to by the appellants on various grounds. 2. The learned Sr. Counsel submits that in an identical issue this Bench by Stay Order No. 309/2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Authorities under the category of "Out Door Caterer Services" with effect from 10-9-2004. They discharged Service Tax liability on the entire amount collected towards handling charges, delivery charges, hi-lift charges and bond handling charges. Revenue proceeded against the appellant on the ground that no Service Tax was collected or paid on account of supply of meals/food items to the Airlines. The appellant pays sales tax on the food items sold and they have records to show that sales tax has been paid. After adjudication the Commissioner passed the impugned order. The learned Advocate stated that the appellant is specifically covered by clause (f) of Article 366 (29-A) of the Constitution of India introduced vide 46th Amendment Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Pvt. Ltd. v. CCE, Cus ST. Patna - 2008-TIOL-114-CESTAT-KOL (e) M/s. Thermax Ltd. v. CCE, Pune-I -2007-TIOL-1466-CESTAT-MUM (f) Gerb Vibration Control Systems (P) Ltd. v. CST, Bangalore - 2007 (7) S.T.R 403 (Tri.-Bang.) (g) Glaxo Smithkline Asia Pvt. Ltd. v. Assessing Authority - 2007 (8) S.T.R. 450 (Del.) 5.1 The appellants are raising separate invoices for goods sold separately and services provided separately indicating sales tax or service tax as the case may be. 5.2 Supply of food and beverages to Airlines per se is not an activity of a out door caterer service has defined under the Act. Definition of out door caterer w.e.f. 16-6-2005 reads as follows: "Outdoor caterer" means a caterer engaged in pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were relied on: (a) Sri Chakra Tyres reported in 1999 (108) E.L.T. 361 affirmed in 2002 (142) E.L.T. A279 (S.C.) (b) New Delhi Commissionerate vide Trade Notice dated 23-5-2002 (c) Rajmahal Hotel v. Commissioner of Central Excise, Jaipur - 2006 (4) S.T.R. 370 (Tri.-Del.) (d) Panther Detective Services v. CCE, Kanpur - 2006 (4) S.T.R. 116 (Tri.-Del.) (e) Explanation 2 in Section 67 of the Act 5.7 The show cause notice has invoked extended period of limitation. This is not justified as there is no fraud, willful misstatement, collusion or suppression of facts with intent to evade service tax. Following case relied on: (a) M/s. Continental Foundation Joint Venture Sholding, Nathpa H.P. v. Commissioner of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of 50%, the appellant cannot claim deduction for the entire coast of the food and beverages supplied. 8. The learned Advocate counted the argument of the learned SDR saying that the decisions cited by the learned SDR relate to the leviability of Service Tax on Caterers. As far as the present appeal is concerned, the appellants do not challenge the levy. The dispute is only with regard to the correct valuation of the amount for purposes of service tax. As regards the exemption Notification it is for the appellants to avail of it or not. When the actual cost of food and beverage is available, there is no need for paying service tax for the amounts received on account of their sale especially when sales tax has also been paid. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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