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TMI Blog2009 (1) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... MAN, TECHNICAL MEMBER AND M.V. RAVINDRAN, JUDICIAL MEMBER G. Shiva Dass for the Appellant. Smt. Sudha Koka for the Respondent. ORDER T.K. Jayaraman, Technical Member. - This appeal has been filed against the Order-in-Original No. 87/2007, dated 12-9-2007 passed by the Commissioner of Service Tax, Bangalore. 2. We heard both sides. 3. The appellants are engaged in the activity of providing taxable service under the category of 'Outdoor Catering Services' as defined under section 65(76a) of the Finance Act. investigations were conducted by the Anti Evasion Wing of the Service Tax Commissionerate, Bangalore, and it was revealed that the appellants were not discharging the Service Tax liability on the gross amount colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court in the case of BSNL v. Union of India [2006] 3 STT 245 to substantiate their contention that the entire transaction in supply of food items is to be treated as sale of goods, in terms of article 366(29A) of the Constitution. Of course, they also made a submission before the Commissioner (Service Tax) that strictly speaking, the activities rendered by them to various Airlines even would not fall under the definition of taxable services. However, in view of the various decisions before the Tribunal, they were only pressing for the deduction of the amounts received for the supply of food and beverages from leviability to Service Tax. They also stated that they would be entitled for exemption under Notification 12/2003. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellants have entered into contract with various Airlines for supply of food, beverages, etc., to the Airlines. Before the Tribunal, the leviability to service tax on the activity of the supply of food items to the Airlines is not under dispute. The fact that the appellants come under the ambit of 'Outdoor Caterer Services' is not in dispute. Therefore, it is not necessary for us to discuss that aspect of the appeal. What is the relevant point here is whether the appellants are required to discharge the service tax liability on the entire amount collected from the Airlines which includes separately the amount collected for food, beverages, etc., even in terms of contract. It is also seen that separate invoices have also been issued fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Idea Mobile Communications Ltd. v. CCE 5 SIT 352 (Bang. - CESTAT) wherein the Tribunal has held that no service tax is payable when sales tax has already been paid. In the above decision, the Tribunal relied on the Apex Court's decision in the case of BSNL (supra). Further, the following case-laws were also relied on by the appellant :— (i) Imagic Creative (P.) Ltd. v. commissioner of commercial Taxes [2008] 12 STT 392 (SC); (ii) Idea Mobile Communications Ltd. s case (supra); (ii) BPL Mobile Communications Ltd. v. CCE [2007] 8 STT 416 (Mum.-CESTAT); (iv) ASL Motors (P.) Ltd. v. CCE ST [2008] 17 STT 83 (Kol.-CESTAT); (v) Thermax Ltd. v. CCE [2008] 12 STT 89 (Mum.-CESTAT); (vi) Gerb Vib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture, sales tax would be payable on the value of the entire contract; irrespective of the element of service provided. The approach of the assessing authority, to us, thus, appears to be correct." In view of this, it is very clear when there is contract for provision of service and if, in that contract, there is also supply of goods and if sales tax has been paid on the goods, service tax cannot be levied on the same. There are several decisions to that effect and also the Commissioner has not examined correctly the applicability of Notification No. 12/2003 to the appellant. The cost of the food items supplied is clearly available in the records. Therefore, the Commissioner's finding that they are not entitled for the benefit of Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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