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TMI Blog2024 (5) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... ot indivisible cannot deprive, department of its due revenue, specially in the negative list regime. The service tax was payable by the party during the negative list regime on the handling charges paid by them. However, this bench also notes that knowledge about such charges having being recovered was available with the department at the time when impugned show cause notice were issued and earlier litigation on the same point for prior to negative list regime was already underway and was decided in their favour as per the decision in their own case JIVAN JYOT MOTORS PVT LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST, SURAT [ 2023 (7) TMI 1178 - CESTAT AHMEDABAD] . The extended period of limitation would not apply and penalty will also ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax on the same amount. The Learned Advocate also places reliance on the fact that demands are considerably barred by limitation, as the department was always in the knowledge of demand being made from them even for the earlier period and earlier show cause notice which was decided by the final order in their own case (cited supra) 3. Learned AR reiterates the finding and states that since the BSNL Vs. Union of India as reported in 2006 (2) S.T.R. 161 (S.C) as well as Imagic Creative Pvt. Ltd. vs. CCT as reported in 2008 (9) S.T.R. 337 (S.C), it has been held that VAT cannot be imposed on portion relating to value of services. And that aspect doctrine indicates that goods can only be taxed by State Government and services by center, as is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled as the aspect theory in order to justify overlapping of taxes on the same transaction. This has been elaborated in other judgments of the Hon ble Supreme Court, some of which are referred to as under. (a) In State of West Bengal v. Kesoram Industries Ltd. [(2004) 10 SCC 201], Hon ble Supreme Court while elucidating on the aspect theory has held that there can be no question of conflict solely on account of two aspects of the same transaction being utilized by two legislatures for two levies, both of which may be taxes or fees or one which may be a tax and other a fee failing within two fields of legislation respectively, available to them. So long as the essential character of levy is not departed from within the four corners of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India (supra), held as under : Wherever legislative powers are distributed between the Union and the States, situations may arise where the two legislative fields might apparently overlap. It is the duty of the courts, however difficult it may be, to ascertain to what degree and to what extent, the authority to deal with matters falling within these classes of subjects exists in each Legislature and to define, in the particular case before them, the limits of the respective powers. It could not have been the intention that a conflict should exist; and, in order to prevent such a result the two provisions must be read together, and the language of one interpreted, and, where necessary modified by that of the other. Thus, Aspect theory im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66(29A)(f), we are of the view that it only permits the State to impose a tax on the supply of food and drink by whatever mode it may be made. It does not conceptually or otherwise include the supply of services within the definition of sale and purchase of goods. This is particularly apparent from the following phrase contained in the said sub-article such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods . In other words, the operative words of the said sub-article are supply of goods and it is only supply of food and drinks and other articles for human consumption that is deemed to be a sale or purchase of goods. 43. The concept of catering admittedly includes the concept of rendering service. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxed, but the tax is and remains on sale of goods. That is why the State Legislatures were held to be empowered to impose, levy, assess and recover tax on sale of articles of food and drink which have been termed as goods. Once the observations of the Honourable Supreme Court and the Constitutional definition is understood in this context, then, we do not feel that any assistance can be derived by the petitioners from the judgment in K. Damodaraswamy Naidu (supra). This judgment of the Honourable Supreme Court in no way decided the controversy before us far from holding that the parliament is incompetent to impose and levy a tax on services provided in an air-conditioned Restaurant . 4.1 We are therefore are inclined to hold that the serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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