TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 707
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.... purpose of hearing the appeal. In these appeals, the following substantial questions of law are raised: "1. Whether the tribunal was correct in recording the finding that the service of supply of coffee at a fixed price dispensed through the vending machines to the employees of company at their premises undertaken by the appellant has a predominant element to hold that the appellant failed to make out a prima facie case, by omitting to take proper note of the rulings of the Supreme Court in the case of Tamilnadu Kalyana Mandapam Assn. v. UOI, reported in 2006 (3) STR 260 (SC) and later clarified by Board Circular dated 24.9.1997 that in order to attract the levy of service tax under the taxable Outdoor Catering Service, there should be a ....
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....the dispute relating to the taxable service of mandap keeper and not merely the outdoor catering service?" 2. The appellant is engaged in the business of manufacture and sale of coffee and tea through vending machines. An agreement dated 30.10.2008 was entered into between SGS India Ltd., and the present appellant, for running catering service for supply of coffee and tea to the employees of the company at a fixed rate. According to the department/revenue, the transaction in question falls within the definition of 'outdoor caterer' in terms of Section 65 (76a) of the Finance Act, 1994 and the appellant is a 'caterer' in terms of Section 65 (24) of the Finance Act, 1994. 3. A show cause notice was issued by the department d....
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....ibunal came to the conclusion that the pre-dominant element in the whole transaction is that there was a service rendered by the appellant in respect of supply of coffee, tea and other beverages to the employees and, evidently, did not show an element of sale. However, the Tribunal held that the appellant did not make out a prima facie case for waiver of the entire amount of pre-deposit, but was inclined to allow the application on deposit of Rs. 30,00,000/-(Rupees Thirty Lakhs only) within a period of eight weeks from the date of the order. Aggrieved against the order passed by the Tribunal, the present appeal has been filed by the assessee. 6. Heard the learned counsel appearing for the appellant and the learned standing counsel appearin....
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....Payments of service tax as also VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract as contradistinguished from an indivisible contract. It may consist of different elements providing for attracting different nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract, irrespective of the element of service provided. The approach of the assessing authority, to us, thus, appears to be correct." 9. At this juncture, it is apposite to refer to a decision of the Supreme Court in Benara Valves Ltd. v. CCE, (2006) 13 SCC 347, ....
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....decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard ....
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.... of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interests of the Revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue.....