TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1000
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.... June 2005 to 31st March 2009 dated 19th October 2010 for Rs. 76,92,214/- for the period from 1st April 2009 to 31st March 2010 and dated 5th October 2011 for Rs. 1,79,01,649/- for the period from 01st April 2010 to 31st March 2011. A further show cause notice was issued on 18th October 2012 demanding Rs. 2,70,10,395/- for the period from 1st April 2011 to 31st March 2012 which was adjudicated vide order-in-original no.11/ST/RN/CMR/MII/13-14 date 31st December 2013 by Commissioner of Central Ex-est. Mumbai - Il. In computing the demand, tax was charged on the total receipts obtained by the appellant from M/s Larsen &Toubro after providing for abatement of 50% in accordance with notification no. 1/2006 dated 01/03/2006. It appears that the t....
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.... receiving such services. and 'caterer' as defined under section 65(24) of the Act is 'any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose or occasion' 4. It is the contention of the Learned Counsel that the appellant is a co-operative society comprising of employees of M/s Larsen & Toubro who are the beneficiaries of the canteen which is statutorily mandated under labour laws. It is also his contention that the appellant-society, comprising as it does of the beneficiaries, is excluded from tax owing to the principle of mutuality. It is also contended that the food supplied are subject to VAT l....
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.... the distribution among its members and customers, in the proportion rules or by the bylaws of the society, the profits accruing from such procurement production or processing, and distribution; indicating that the appellant is debarred from claiming exemption on the ground of mutuality. 6. We have gone through the records very carefully and find that the said activity sought to be taxed by Revenue is the performance of the statutory function that falls within the responsibility of M/s Larsen & Toubro, Powai in its capacity as an employer under the Factories Act, 1948. It would appear that, considering the need for employee satisfaction in the matter of culinary service and to decentralize this operation, M/s Larsen & Toubro found it advan....
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....d rates or at market prices is a matter of labour-employer negotiations. It is clear that without the approval and concurrence of M/s Larsen & Toubro, the appellant could not engage in the activity of running the canteen. Nor can the appellant decide on rates of food articles or the composition of the individuals who are served in the canteen. The activity of the appellant is a consequence of the obligation of M/s Larsen & Toubro to its employees and is, therefore, but a service. 8. It remains to be seen if such service is taxable as 'outdoor catering service'. The primary difference between a 'caterer' and an 'outdoor catering service' is that the latter operates from a premise other than its own. It is case of the appella....
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....The above aspects have not been appreciated authorities below. The activities undertaken by the appellant cannot be held to fall under the category of outdoor catering service. The facts of the case in Raj Kumar Jain cited supra are entirely different and hence the said decision can not be applied to the facts of the present case.' In the present matter, appellant is an independent entity which does not have bear any loss on account of the rates which are not within its commercial decision. It cannot, therefore, claim to have been engaged merely to cook and serve. 11. In re Indian Coffee Workers Co-op. Society Ltd, wherein the issue was decided in the context of the provider of the service being an independent entity engaged by employees ....