2008 (5) TMI 101

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....tion charges". The department proceeded against the appellants for recovery of Service Tax in respect of sale of food items made to the airlines. This is resisted to by the appellants on various grounds. 2. The learned Sr. Counsel submits that in an identical issue this Bench by Stay Order No. 309/2008 dated 29-4-2008 has waived the pre-deposit in the case of M/s. LSG Sky Chefs (India) Pvt. Ltd. He produces a copy of the said order. He submits that a similar order be passed in this case and matter may be linked along with other connected case for final hearing on 9-7-2008. 3. Heard learned SDR who prays for putting the appellants on terms, as the total Service Tax is Rs. 52,90,482/- besides penalty in the matter. He also files para-wise c....

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....d and they have records to show that sales tax has been paid. After adjudication the Commissioner passed the impugned order. The learned Advocate stated that the appellant is specifically covered by clause (f) of Article 366 (29-A) of the Constitution of India introduced vide 46th Amendment Act. It reads as follows: "366. (29-A) 'tax on the sale or purchase of goods' includes - (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, 5. Subsequent to the above amendment of the Constitution, the definit....

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....ly of food and beverages to Airlines per se is not an activity of a out door caterer service has defined under the Act. Definition of out door caterer w.e.f. 16-6-2005 reads as follows: "Outdoor caterer" means a caterer engaged in providing services in connection with catering at a place other then his own but including a place provided by way of tenency or otherwise by the person receiving such services." 5.3 The appellant is entitled to the benefit of Notification 12/2003-ST dated 20-6-2003 which provides for deduction of the value of the goods and materials sold. Reliance is placed also on the following decision: (a) Ad Labs v. CCE, Bangalore reported in 2006 (2) S.T.R. 121 (Tri.-Bang.) (b) Shilpa Color Lab v. CCE, Calicut - 2007 (5)....

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....pression of facts with intent to evade service tax. Following case relied on: (a) M/s. Continental Foundation Joint Venture Sholding, Nathpa H.P. v. Commissioner of Central Excise, Chandigarh-I - 2007-TIOL-152-SC-CX. (b) CCE v. Chemphar Drugs & Liniments reported in 1989 (40) E.L.T. 276 (S.C.) 5.8 When no Service Tax is payable the question of interest under Section 75 and penalties under Sections 76, 77 and 79 of the Act, does not arise. Section 80 provides that no penalty shall be imposable on the assessee for any failure if the assessee proves that there was reasonable cause of the said failure. Thus, the Act statutorily provides for waiver of the penalty. The following decisions are relied on. (a) Hindustan Steel Ltd. v. The State o....