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TMI Blog2024 (5) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... would be the part of sale price and VAT would be applicable on the basic price plus service tax. The interpretation taken by the Principal Secretary to the Government of Haryana, is wholly erroneous for implementing and imposing of VAT. The authority would have to examine each case whether the work done is a sale separately from the service in cases relating to catering, where there is an element of sale relating to food etc., the VAT would be applicable. However, for the purpose of service tax where the catering provides the service for serving foot etc., the VAT on the said element cannot be charged and as service tax @ 60% element is only required to be paid, the same cannot be included in the original sale for the purpose of claiming VA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also been followed by this Court in the case of M/s CAP 'N' Chops Caterers vs. State of Haryana, GSTR No. 1 of 2009, decided on 07.09.2010. Learned counsel submits that the revision notice deserves to be quashed as even in the second round, it mentions about the sale of fixed assets but neither gives the detail of sale fixed assets whose sale has not been discussed. Learned counsel has strenuously submitted that the case of M/s Redington India Limited, Panchkula, is a clarification of the State Government which goes contrary to the law laid down by the Hon'ble Apex Court in Tamil Nadu (supra). Learned counsel submits that once the petitioner's company has been separately charging VAT and service tax element has to be charged only upto 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be construed accordingly." 6. On conjoint reading of 'sale price' and 'gross turnover' the authorities reached at the conclusion that VAT charged would not form part of the sale price. Since, the liability to pay service charge is of the applicant and the applicant has received service tax from the purchaser as consideration for sale, therefore, the service tax would be the part of sale price and VAT would be applicable on the basic price plus service tax. 7. We find that the interpretation taken by the Principal Secretary to the Government of Haryana, is wholly erroneous for implementing and imposing of VAT. The authority would have to examine each case whether the work done is a sale separately from the service in cases relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provide to the contrary. 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 includes the supply to 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 is 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. 44. The concept of catering admittedly includes the concept of rendering service. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods being food and other articles for human consumption in the concept of deemed sale, supply of service could not be deemed to have been covered in definition of "sale and purchase of goods." As against supply of service, only supply of goods is covered by sale. Catering includes rendering of service as well as sale of goods and on the service element service tax could be levied and sales tax could not be levied. 8. In view of above legal position, it has to be held that entire turnover from catering contract cannot be held to be taxable as sale of goods under Section 2 (l)(v) of the Act. The sale tax can be levied on the turnover of sale, after excluding the turnover attributable to service." 9. Thus, we find that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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