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TMI Blog2024 (11) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... e any service element and, therefore, following the ratio of the judgements referred above, the activity of sale of food items by Take Away or Home Delivery by the appellant is not liable to service tax. Accordingly, the impugned order deserves to be set aside and the appeal is allowed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Santosh Kumar, Authorised Representative for the Appellant Shri Sambhu Chopra, Sr. Advocate Ms. Mahima Jaiswal, Advocate for the Respondent ORDER The present appeal has been filed by the Revenue assailing the Order-In-Appeal No. 83-ST-APPL-LKO-2019-2020 dated 05/05/2020 passed by the learned Commissioner (Appeals) Customs, CGST Central Excise, Lucknow. The Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bases of the actual place of supply and held that for being taxable, the service of supply of food must necessarily be done within the restaurant premises. If the food is sold over counter then the transaction would only involve VAT and no service tax is leviable. (iv) the Service tax is not liable on take away or home deliveries, no service element is involved. service tax is payable only on service portion of transaction. Services is defined under Section 65B(44) of the Finance Act, 1994, the relevant portion is as following: (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 goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment that sale of food over the counter would attract service tax, is without any sustainable legal basis. Whereas the adjudicating authority as well as the appellant in the Memorandum of Cross Objection have cited several departmental clarifications to the effect that over the counter sale of food will not attract service tax. Hence, I do not find any merit in the appeal and the same is dismissed. 4. Hence the present appeal filed by the Revenue before the Tribunal. 5. Heard both the sides and perused the appeal records. 6. We find that the issue is no more res-integra and has been decided by the Tribunal in the case of M/s Bikanervala Foods Pvt. Ltd. V/s Commissioner of CGST, Customs Central Excie, Delhi-East vide Final Order No.55921 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and no amount is charged for free delivery of food as the dominant nature of the transaction is that of sale and not service, as the food items are not served at the restaurant and there is no other element of service, which is normally offered at the restaurant. Referring to the earlier decision of the Madras High Court in Anjappar Chettinad A/C Restaurant Vs. Joint Commissioner [2021 (6) TMI 226 Madras High Court], where also, it was held that service tax would not be leviable in case of Take Away of food items. The relevant paragraphs of the said decision are as follows:- 5. According to the petitioners, there is no liability for sale of food at the take-away counter or by parcel. They would state that the sale of packaged food constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... among others. The provision of the aforesaid niceties are critical to the determination as to whether the establishment in question would attract liability to service tax, and that too, only in an air-conditioned restaurant. 27. In the case of take-away or food parcels, the aforesaid attributes are conspicuous by their absence. In most restaurants, there is a separate counter for collection of the take-away food parcels. Orders are received either over telephone, by e-mail, online booking or through a food delivery service such as swiggy or zomato. Once processed and readied for delivery, the parcels are brought to a separate counter and are picked up either by the customer or a delivery service. More often than not, the take-away counters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customer, over the counter and this would amount to sale of goods. Services such as dining facility, washing area, clearing of the tables after the food has been eaten are, therefore, not involved. The activities of preparation of food and packing thereof by the appellant in case of take-away items are conditions of sale of such food, wherein the intention of the customer is to merely buy such packaged product from the appellant, and not to avail any restaurant services. Since the facts of the present case are absolutely identical and give rise to the issue of taxability of sale of food items through Take Away or Home Delivery , the activity is clearly of sale of food and does not involve any service element and, therefore, following the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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