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TMI Blog2024 (7) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... of sale of food is not includible in the taxable service provided under the Mandap Keeper Service. Therefore, the demand on account of short payment of service tax under the category of Mandap Keeper Service , is set aside. Service tax on electricity charges collected on a reimbursement basis - HELD THAT:- M/s Quality Maintenance Venture Limited, who supplied the electricity to the appellant, has raised invoices at the rate of Rs. 8.00 per unit and in turn, the appellant has also raised the invoices to their tenants at the rate of Rs. 8.00 per unit - As the appellant has recovered the electricity charges on actual basis, on this count also, no service tax is payable by the appellant as the appellant has not earned any profit for providing electricity. On taking note of the fact that in the case of M/S ICC REALITY (INDIA) PVT LTD OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2013 (12) TMI 854 - CESTAT MUMBAI] , this Tribunal held that no service tax is payable for providing electricity - the electricity charges are not liable to service tax. Thus, except the admitted demand which has been paid by the appellant along with interest, no other demand is sustainable against the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of their mall but has not discharged the service tax on the same thereby contravening the provisions of the Finance Act, 1994. 2.2 The appellant contested the show-cause notice, but demand as per show-cause notice was confirmed against the appellant. 2.3 Aggrieved from the said order, the appellant is before us. 3. The ld.Counsel appearing on behalf of the appellant, submits that the appellant has paid the service tax on permission charges to the tune of Rs. 1,48,276/- along with interest of Rs. 65,830/- and the same is not under dispute. The appellant is disputing short payment of service tax to the tune of Rs. 1,33,87,887/- under the taxable category Mandap Keeper Services on the ground that the sale of food is not a part of Mandap Keeper Service . On the same, the appellant has paid VAT. Therefore, it is a sale and not service. Further, the same is to be considered as sale of food, which is an integral part of Mandap Keeper Service. 3.1 He further submitted that the appellant is entitled to the benefit of Notification No.12/2003-ST dated 20.06.2003 upto 30.06.2012 and thereafter, under Section 65B (44) w.e.f. 1st July, 2012, which itself excluded sale and deemed sale from its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For better appreciation of facts , the agreement and the invoices are extracted below : As the agreement hereinabove, it is clear that the rental charges and sale of foods charges are shown separately. 8. In similar circumstances, in the case of Hyatt Resorts Private Limited (supra), this Tribunal has observed as under: We find that in the invoices, the appellant has shown hall rent separately and supply of foods separately. For better appreciation, one of the invoices is extracted herein below:- On going through the invoice, we find that the appellant has charged hall rent separately on which service tax has been paid and also charged for supply of food on which VAT has been paid, therefore, in terms of Notification No. 12/2003-ST dated 20.06.2003, the appellant is entitled to claim deduction on the value of the foods supplied. Admittedly, on full value of food supplied, the appellant has paid VAT, therefore, in terms of Notification No. 12/2003-ST dated 20.06.2003, the appellant is entitled to claim deduction. The said view has been taken by this Tribunal in the case of Despalla Hotels Ltd. (supra) wherein this Tribunal observed as under:- 4. In the instant case, the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide service, as service. In the circumstances, we vacate the impugned demand and concomitant penalties. The appeal is allowed. Therefore, we hold that the appellant are not liable to pay differential service tax as demanded in the impugned order on account of Catering Service which are sought to be included in the value of service on which the appellant has already paid VAT. In these circumstances, the demand on account of short payment of service tax is set-aside. 8. We also take a note of the fact that in terms of Section 65B (44) of the Finance Act 1994, the definition of services provided which is as follows:- (44) service means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include (a) an activity which constitutes merely, (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution; or (iii) a transaction in money or actionable claim; (b) a provision of service by an employee to the employer in the course of or in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t includible in the taxable value under the category of Mandap Keeper Service , therefore, we hold that in this case also, the amount realized by the appellant on account of sale of food is not includible in the taxable service provided under the Mandap Keeper Service. Therefore, the demand on account of short payment of service tax under the category of Mandap Keeper Service , is set aside. 9. With regard to service tax on electricity charges, we find that M/s Quality Maintenance Venture Limited, who supplied the electricity to the appellant, has raised invoices at the rate of Rs. 8.00 per unit and in turn, the appellant has also raised the invoices to their tenants at the rate of Rs. 8.00 per unit. For better appreciation of facts, the invoices issued by the electricity provider and the electricity provided by the appellant, are extracted below : As the appellant has recovered the electricity charges on actual basis, on this count also, no service tax is payable by the appellant as the appellant has not earned any profit for providing electricity. 10. Further, we take note of the fact that in the case of ICC Reality (India) Private Limited (supra), this Tribunal held that no serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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