2014 (5) TMI 652 - HC - Service Tax

Court clarifies service tax not applicable on sale of goods, recommends measures to prevent double taxation

M/s. Hotel East Park & Another Versus Union of India & Others

The court upheld the validity of Section 66E(i) of the Finance Act, 1994, ruling that service tax is not applicable on the sale of goods and vice versa. ... Constitutional validity of section 66E(i) - Service tax on sale value of the food and drinks - facilities provided in a hotel including an air-conditioned, restaurant and a bar - Whether section 66E(i) of the 1994-Act is violative of Article 366 (29A)(f) of the Constitution - Held that:- Section 65B(44)(ii) of the 1994-Act shows that supply of goods that is deemed to be sale under Article 366(29A) is not included in service. - We are afraid, Article 366(29A)(f) of the Constitution does not indicate that the service part is subsumed in the sale of the food; it rather separates sale of food and drinks from service. - Section 65B (44) as well Section 66E(i) only charges service tax on the service part and not on the sale part. It indicates that the sale of the food has been taken out from the service part as was interpreted by the Supreme Court in the Associated-Hotel case and the Northern-Caterers case. Section 66E(i) of Chapter-5 of the relating to service tax of the Finance Act, 1994 [Statutory Provisions Relating to Service Tax] is intra vires the Constitution. - Decided against the assessee. RECOMMENDATIONS: There is no provision in the VAT-Act to bifurcate the amount. The State Government will do well to frame such rules to this effect. These rules may be in conformity with the bifurcation as provided under the 1994-Act or ensure that the Commercial Tax authorities do not charge VAT on that part of the value of the food and drink on which the service tax is being assessed. The restaurant and caterer are also normally charging VAT on the bill value. This is not proper. They may charge service tax on 40% or 60% as the case may be of the bill value and charge VAT at the rate of 60% or 40% of the bill value, but not on the entire bill value. - The State Government will be well advised to issue a clarification/ direction in this regard and will ensure that the consumers are not unnecessarily doubly taxed over the same amount. Decided against the assessee subject to recommendation to state governments. Issues Involved:1. Whether any service tax can be charged on a sale of an item or vice versa.2. Whether in view of Article 366 (29A)(f) service is subsumed in the sale of food and drinks.3. Whether section 66E(i) of the Finance Act, 1994 is violative of Article 366 (29A)(f) of the Constitution.Detailed Analysis:1. No Service Tax on Sale and Vice Versa:The judgment discusses the legislative competence of the Parliament and the States regarding the imposition of taxes. The Constitution has two relevant entries for tax on sale and purchase: Entry 92 of List-I (Union List) and Entry 54 of List-II (State List). The Parliament has the competence to impose tax on the sale or purchase of newspapers and on advertisements therein (Entry 92), and on goods in the course of inter-State trade or commerce (Entry 92A). On the other hand, the States have the competence to impose tax on the sale or purchase of goods other than newspapers (Entry 54). The Parliament cannot impose a tax on the sale or purchase of goods within a State, except for newspapers. Similarly, there is no entry in List II or III under which service tax can be imposed by the States. The 1994 Act imposing service tax has been enacted by the Parliament under Entry 97 of List-I, which is a residuary entry.2. Section 66E(i) Intra Vires:The court examined whether the service element in serving food and drinks in a restaurant is subsumed in the sale, as per Article 366(29A)(f) of the Constitution. Historical judgments such as the Associated-Hotel case and the Northern-Caterers case had held that the supply of food in a hotel or high-class restaurant is part of the service. This led to the insertion of Article 366(29A)(f) through the 46th Amendment, which aimed to bifurcate the sale of food or drinks from the service part. The court concluded that Article 366(29A)(f) does not indicate that the service part is subsumed in the sale of food. Instead, it separates the sale of food and drinks from the service. Section 65B(44) and Section 66E(i) of the 1994 Act charge service tax only on the service part and not on the sale part, making Section 66E(i) intra vires the Constitution.3. Recommendations:The court acknowledged the difficulty in quantifying the service part and the sale part. Rule 2C of the Service Tax (Determination of Value) Rules, 2006, read with the notification dated 20.06.2012, clarifies that in a restaurant, service is presumed to be 40% of the bill value, and in outdoor catering, it is 60%. The court noted that VAT should not be charged on the amount over which service tax has been levied. The State Government should frame rules to ensure that VAT is not charged on the service part. The court recommended coordination between the State and Central Government authorities to avoid double taxation.Conclusion:The court held that Section 66E(i) of the Finance Act, 1994, is valid and dismissed the writ petition with the observations mentioned under the heading 'Recommendations'. The judgment emphasizes the separation of the service part from the sale of food and drinks, aligning with Article 366(29A)(f) of the Constitution. The court also recommended measures to avoid double taxation on the same amount by ensuring that VAT is not charged on the service part.