2019 (2) TMI 876 - AT - Service Tax

Tribunal rules in favor of appellant in Service Tax appeal, excluding newspaper and packed items from tax calculation.

The Tribunal allowed the appellant's appeal in a case concerning discrepancies in Service Tax payment for catering services on trains. The Tribunal ruled ... Valuation - Outdoor catering services - inclusion of cost of the newspapers as also the value of the packed items sold by the appellant on the printed MRP in assessable value - benefit of abatement under N/N. 1/2006-ST. - time limitation. Held that:- There is no dispute about the factual position. The adjudicating authority has not rebutted the above factual and contractual contents of the agreement entered into between the appellant and the Railways. The appellants are not making any money from the supply of the said newspapers to the passengers from whom the Railways have already retrieved the cost at the time of supply of the ticket - further, in any case and in any view of the matter the supply of newspapers is not covered by the definition of ‘outdoor caterers’ is given in Section 65(76a) of the Finance Act. Newspapers supplied by the appellant on behalf of the railways can by no stretch of imagination, be considered to be in the same line of food or food articles - the cost of the newspapers cannot form part of value of ‘catering services’. Inclusion of sale of packed confectionary items to the passengers - Held that:- The issue is no more res integra and an identical issue was considered by the Tribunal in the case of LSG Shyshape Chegs (P) Ltd. v. CST [2009 (1) TMI 120 - CESTAT BANGALORE] as also in the case of Imagic Creative Pvt.Ltd. v. Commissioner of Commercial Taxes [2008 (1) TMI 2 - SUPREME COURT OF INDIA], wherein it was held that when assessee was paying Sales Tax on portion of value of the contract than simultaneously Service Tax could not be demanded from it as they are mutually exclusive - The Commissioner has not denied the fact that the readymade packed items sold by the appellant has already discharged the VAT element. If that be so, the confirmation of Service Tax against the same by including the cost of the same in the value of the ‘catering services’ is unsustainable. Benefit of Notification No.1/2006-ST dated 01.03.2006 - Held that:- As it is already held that the providing of newspapaers as a pure agent of railways and the sale of the packed foods on payment of VAT would not attract the Service Tax, the fact of non-inclusion of the said values in the invoices/bills raised by the appellant cannot be adopted as a ground leading to violation of condition of Notification. The appellants have correctly availed the benefit of the Notification in question. Time limitation - Held that:- The demand is hopelessly barred by limitation. The Revenue has not adduced any evidence of any willful suppression or misstatement on the part of the assessee so as to justifiably invoke the longer period. Admittedly the issues are complicated interpretational issues and cannot reflect upon any mala fide on the part of theappellant. The demand is accordingly hit by the bar of limitation having been raised beyond the normal period. Appeal allowed - decided in favor of appellant. Issues:1. Discrepancy in Service Tax payment by the appellant for catering services provided on trains.2. Inclusion of cost of newspapers and packed confectionary items in the value of services for Service Tax calculation.3. Denial of abatement benefit under Notification No.1/2006-ST due to alleged violation of conditions.Analysis:Issue 1: Discrepancy in Service Tax paymentThe appellant, registered for outdoor catering services on trains, faced scrutiny for discrepancies in the value of services reported. The Revenue alleged non-inclusion of the cost of newspapers and packed items in the service value, leading to a demand notice for unpaid Service Tax. The Commissioner confirmed a substantial demand along with penalties, prompting the appeal.Issue 2: Inclusion of cost of newspapers and packed itemsThe appellant contended that the cost of newspapers supplied to passengers, recovered from IRCTC, should not be part of the catering service value as they acted as a pure agent. The Tribunal found the newspapers did not fall under the definition of catering services, disagreeing with the adjudicating authority's broad interpretation. Similarly, the sale of packed items attracting VAT was deemed a separate sale transaction, not subject to Service Tax.Issue 3: Denial of abatement benefitThe Revenue denied the abatement benefit under Notification No.1/2006-ST due to the non-inclusion of packed item values in invoices. However, since the Tribunal ruled in favor of the appellant on the previous issues, the non-inclusion could not be a ground for violating the notification conditions. Moreover, the demand was deemed time-barred, lacking evidence of willful suppression or misstatement by the appellant.In conclusion, the Tribunal allowed the appeal, setting aside the impugned order and granting relief to the appellant due to the unsustainable Service Tax demands and the limitation bar on the demand.