TaxTMI 
TaxTMI 
2024 (11) TMI 721
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....know. The Respondent-Assessee has filed the Cross-Objection. 2. The facts of the case in brief are that the Respondent-Assessee is registered with the Department for providing taxable services. They did not pay service tax on the foods sold on counter/taken away. The Adjudicating Authority held that sale of food over the counter is not service and, therefore, there is no ground to levy service tax on the same. 3. The Original Authority dropped the proceedings initiated vide the Show Cause Notice. The Department was in appeal before the learned Commissioner (Appeals) and the learned Commissioner (Appeals) vide the impugned Order-In-Appeal observed as under:- "4. The respondent has submitted in the memorandum of cross objection which is a....
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....utes merely, (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner, or (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (294) of article 360 of the Constitution of (iii) a transaction in money or actionable claim; Therefore, from the above, it can be concluded that take-away sales purely comes under "sale of goods" not "sale of services" and hence non-taxable in terms of service tax. (v) As far as the issue that 'price charged' was same in 'dine in' and 'take away', where on one hand in a restaurant price includes the proportionate cost of restaurant's various facilities such as furnishing, waiter se....
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....T, Customs & Central Excie, Delhi-East vide Final Order No.55921 of 2024 dated 07.06.2024 in Service Tax Appeal No.50278 of 2019. Relevant paragraphs of the order are reproduced below:- "6. The issue that arises in the present case is whether the activity of "Take Away" and "Home Delivery" tantamounts to taxable service under the category of Restaurant Service. We find that the issue is no longer res integra and has been decided by this Tribunal in the case of Haldiram Marketing Pvt. Ltd. Vs. Commissioner of CGST, GST, Delhi East Commissionerate [2023 (71) GSTL 414 (Tri.-Del.)], where the facts and circumstances are identical and hence, the present case is squarely covered by the observations made therein. 7. In the case of Haldiram Mar....
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.... take-away counter or by parcel. They would state that the sale of packaged food constitutes pure trading activity and there is no component of service involved therein. They rely on the definition of 'service' under Section 65B(44), which excludes the transfer of title in goods by way of sale. In the light of this exclusion, parcel sales or take away food would stand outside the ambit of service tax. 6. According to them, in parcel sales, there could be no artificial splitting of transactions between one of 'service' and one of 'sale' with the attempt to bring the same under the purview of the former. The petitioners rely on letter bearing No.DOF 334/3/2011-TRU dated 28.02.2011 which had, according to them, clarified that service tax is ....
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....counter and are picked up either by the customer or a delivery service. More often than not, the take-away counters are positioned away from the main dining area that may or may not be air-conditioned. In any event, the consumption of the food and drink is not in the premises of the restaurant. In the aforesaid circumstances, I am of the categoric view that the provision of food and drink to be taken-away in parcels by restaurants tantamount to the sale of food and drink and does not attract service tax under the Act. 28. The petitioners have brought to my notice several orders passed by the Appellate Commissioners stationed in Chennai and any other parts of the State who have taken a view that take away services would not attract liabili....