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TMI Blog2025 (4) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... ) CGST, Noida. 2. The facts of the case in brief are that M/s Haldiram Snacks Pvt. Ltd., Noida are registered with the Central Excise Department for payment of central excise duty on various types of excisable goods namely mixed condiments & mixed seasonings falling under (CETH 21039040), ice cream & other (CETH 21050000), ready to eat packaged foods (CETH 21069099). The Appellant at the same address is also registered with the Service Tax Department (Centralized STC No. AAACH0061RST002) for payment of service tax due upon them on the restaurant services provided by the Appellant from its restaurant situated at 104 KM Mile stone, Mansurpur, NH-58, Distt. Muzaffarnagar, UP. 3. During the course of the audit of the records of the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not leviable. 7. 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 Excise, Delhi-East vide Final Order No.55921 of 2024 dated 07.06.2024 in Service Tax Appeal No.50278 of 2019. Relevant paragraphs of the order are reproduced below:- "6. The issue that arises in the present case is whether the activity of "Take Away" and "Home Delivery" tantamounts to taxable service under the category of Restaurant Service. We find that the issue is no longer res integra and has been decided by this Tribunal in the case of Haldiram Marketing Pvt. Ltd. Vs. Commissioner of CGST, GST, Delhi East Commissionerate [2023 (71) GSTL 414 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of "Take Away" of food items. The relevant paragaraphs 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 constitutes pure trading activity and there is no component of service involved therein. They rely on the definition of 'service' under Section 65B(44), which excludes the transfer of title in goods by way of sale. In the light of this exclusion, parcel sales or take away food would stand outside the ambit of service tax. 6. According to them, in parcel sales, there could be no artificial splitting of transactions between one of 'service' and one of 'sale' with the attempt to bring the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lephone, 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 are positioned away from the main dining area that may or may not be air-conditioned. In any event, the consumption of the food and drink is not in the premises of the restaurant. In the aforesaid circumstances, I am of the categoric view that the provision of food and drink to be taken-away in parcels by restaurants tantamount to the sale of food and drink and does not attract service tax under the Act. 28. The petitioners have brought to my notice sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 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 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. 8. In view of the above discussion, we find that the facts of the present case are squarely covered by the above mentioned decision. Accordingly, the impugned order is set aside and the appeal filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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