2008 (4) TMI 206

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....wing amounts: (I) Rs. 58,04,581/- Service Tax demanded under Section 73(i) of the Finance Act 1994 for the period from 10-9-2004 to 31-3-2006, (II) Interest for the above amount under Section 75 of the Act, (III) Penalty of Rs. 200/- per day under Section 76, (IV) Penalty of Rs. 1000/- imposed for mis-declaration of value on taxable services, (V) Penalty of Rs. 90,00,000/- under Section 78 of the Act. 3. Shri G. Shivdass, learned Advocate, appeared on behalf of the appellant and Ms. Sudha Koka, learned SDR, appeared for the Revenue. 4. We heard both sides. The learned Advocate stated that the appellant is engaged in the business of preparation and supply of meals and snacks. In addition the appellant is engaged in wrapp....

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....consideration," 5. Subsequent to the above amendment of the Constitution, the definition of 'sale' has been incorporated with amendment which provides that supply of food as a part of any service would also amount to sale. Hence, the supply of the food by the appellant is subject matter of sales tax. As regards the amount received for the services rendered the appellant had already paid the service tax. Reliance was placed on the decision in the case of M/s. Idea Mobile Communications Ltd. - 2006 (4) S.T.R. 132 (Tri.-Del.) wherein the Hon'ble Tribunal has held that no service tax is payable when sales tax has already been paid. In the above decision, the Tribunal relied on the Apex Court's decision in the case of BSNL v. Union of India r....

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.... 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) S.T.R. 423 (Tri.-Bang.) 5.4 The miscellaneous expenses like amount collected from Airlines towards Bond rent, Airport fees, Customs fees, Customs clearance expenditure and scrap sales are available for abatement. Reliance is on the following decision : (a) Trade Notice No. 5/98-Service Tax, dated 14-10-1998 of the Indore Commissionerate (b) Scott Wilson Kirkpatrick (I) Pvt. Ltd. v. CST, Bangalore - 2007 (5) S.T.R. 118 (Tri.-Bang.) (c) Glaxo Smithkline v. Pharmaceuticals Ltd. v. CCE, Mumbai-IV ....

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....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 of Orissa reported in 1978 (2) E.L.T. (J159) (S.C.) = AIR 1970 (SC) 253 (b) ETA Engineering Ltd. v. CCE, Chennai, reported in 2006 (3) S.T.R. 429 (Tri. - LB) = 2004 (174) E.L.T. 19 (Tri -LB) 6. The learned SDR invited our attention to the following decisions : (a) Tamil Nadu Kalyana Mandapam Assn. v. Union of India - 2006 (3) S.T.R. 260 (S.C.) = 2004 (167) E.L.T. 3 (S.C.) (b) Saj Flight Services (P) Ltd. v. Superi....