TaxTMI 
TaxTMI 
2022 (5) TMI 481
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....T-3 returns, sales ledger etc. for the period 2003-04 to 2007-08. It was found that assessee had been providing services of supply of bedroll kits to the passengers of train on behalf of IRCTC and not paid the service tax. The services bedrolls kits supplied to the passengers on behalf of IRCTC are squarely covered under the clause no. (ii) of the definition of 'Business Auxiliary Service' defined under Section 65(19) of the Finance Act 1994. Further investigation carried out and found that they also engaged in the business of providing Railway Catering Services covered under the Outdoor Catering Service as defined under Section 65(76a) of the Finance Act 1994. The Registration for the said service obtained from March 2006 and service provider had not calculated the appropriate value of railway catering service provided by them during the period from 01.03.2006 to 31.03.2008. Detail Show cause notice was issued proposing service tax of Rs. 55,47,317/- under the category of Outdoor Catering Service and Service tax amount of Rs.42,20,893/- under the category of Business Auxiliary Service. The adjudicating authority after considering the submissions made by the appellant dropped the d....
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....oked and penalty cannot be imposed. He placed reliance on the following Judgments: • Bridgestone Financial Services Vs CST, Bangalore - 2007(8) STR 505 (Tr.-Bang) • NRC Ltd. Vs. CCE, Thane -I - 2007 (5) STR 308 (Tri-Mum) • Tamilnadu Housing Board Vs CCE 1994 (74) ELT 9 (SC) • Collector Vs Chemphar Drugs -1989 (40) ELT 276 (SC) • Apex Electricals (P) Ltd Vs. UOI - 1992(61) ELT 413 • Pahwa Machines Vs Commissioner -2003 (153) ELTA92 (SC) • White Machines Vs Commissioner - 2003 (153) ELT A92 (SC) • Continental Foundation jt. Venture Vs CCE, Chandigarh -2007(216) ELT 177 (SC) • Dalveer Sing Vs CCE Jaipur - 2008 (9) STR 491 (Tri.-Del) • CCE Raigad Vs Shield Security Force - 2006 (5 ) STR 97(Tri. Mum) • CCE Bhopal Vs Thyrocare Services - 2006 (4) STR 200 (Tri. -Del) • CCE, Jaipur Vs Sikar Ex- Serviceman Welfare Co-op.-Soc. Ltd. -2006 (4) 213 (Tri.- Del) • Hindustan Steel Vs State of Orissa - 1978 (2) ELT (J159) (SC) • Cement Marketing Co. -1980 (6) ELT 295 (SC) • CC Vs Se....
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.... the service provider choose to avail the benefit of Notification No. 1/2006, he cannot avail Notification 12/2003 and can straightway deduct 50% from the gross value of Service. In either case, he has to pay service tax. The Adjudicating authority has erred in interpreting that Notification No. 12/2003 exempts catering service. This was not an issue in the SCN and therefore the OIO has traveled the beyond the scope. 4.2 He further submits that, service provider during the adjudicating proceedings has submitted that he is not an outdoor caterer at all since they have been using the Pentry Car in the trains for which the contract has been granted. This is also incorrect in as much as the wording used in in the Notification No. 19/2004-S.T. dtd. 10.09.2004, make it very clear that catering service provided in trains is liable to service tax but has been exempted vide said Notification. Moreover the definition of Outdoor Caterer provided under Section 65(76a) means "a caterer engaged in providing services in connection with catering at a place other than his own but including a place provided by way of tenancy or otherwise by the person receiving such service." 4.3 He also submi....
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.... (iv) procurement of goods or services, which are inputs for the client; or Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, "inputs" means all goods or services intended for use by the client;] [(v) production or processing of goods for, or on behalf of, the client;] (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, [but does not include any activity that amounts to manufacture of excisable goods]. [Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this clause, ------------------------------------------------------------------------------------------ 5.2 The facts, is not disputed in the present matter that Appellant has supplied bedroll kits to pa....
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....ied by the railways and the cost is included in the cost of ticket. There are other trains where the meals are not included in the cost of the ticket. The catering is done by the catering vendors like the noticee who earn their rights to sell food on the trains through a tendering process with IRCTC. This entitles them to sell food items at prescribed rates on the trains. The noticee, has claimed benefit of Notification No. 12/2003-ST dated 20.06.2003 and abetment on account of goods had been claimed. I find that the SCN calculates the value of goods sold on the basis of the inputs purchased. Various margins of profit have been added without substantiating the same. In the entire notice the fact that material has been sold on the train has not been challenged. In fact the tax has been demanded on the value of goods sold as is apparent from the Annexure to the SCN. 77. In the instant case it has been found that the purchases were different from those declared in the balance sheet. On the basis of the actual purchase some value of sales has been worked out. But the allegation is that the said packaged material and cooked food of the revised value has been sold on the trains.....