TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1411
X X X X Extracts X X X X
X X X X Extracts X X X X
.... taxable under the head of Outdoor Catering Service as per the provision of Rule 2C of Service Tax (Determination of Value) Rules, 2006, wherein goods being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity at a restaurant or as outdoor catering shall be specified percentage of the total amount charged for such supply. Legal services, Goods transportation agency services & manpower agency services * Legal services, Goods transportation agency services & manpower agency services were liable to tax under reverse charge mechanism under Notification No. 30/2012- ST dated 20.06.2012. Payment of director's remuneration * The Department alleged that these directors were not full-time employees/whole time director but were sharing time with one other Company. Mr. Dipak kumar Singh and Mrs. Laxmi Singh were engaged as employees in two companies - the Appellant Company and M/s. Kanak Land Development Co. Pvt. Ltd. Further, Mr. Arnish Singh & Yash Singh were engaged as employees in two companies - the Appellant Company and M/s Multiflora (Horticulture) Pvt. Ltd. Thus, the remuneration paid to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this regard, the Appellant submits that the supply of sweet boxes is a transaction of sale of goods and no element of service is involved in the said transaction. The dominant nature of the transaction was sale only, and no services, amenities etc. were offered to the customers along with the sale of sweet boxes. The mere fact that the Appellant is registered as an outdoor catering service provider cannot lead to the conclusion that all transactions undertaken by them would be taxable under outdoor catering service.The Appellant submits that the entire demand is based on a superficial understanding of the department. The appellant submitted a copy of the sample invoices issued in this regard. 3.2. In support of their contention that no service tax is payable on a transaction which is considered as a 'sale', the appellant placed their reliance on the following rulings: Tamil Nadu Kalyana Mandapam Assn. Versus Union Of India - 2004 (4) TMI 1 - Supreme Co Hotel Priya v. Commissioner 2018 (9) TMI 1663 - CESTAT CHENNAI 3.3. In view of the above, it is submitted that the sale of food items without any accompanying services does not constitute outdoor catering service. Therefore, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this count is liable to be set aside. 7. Regarding the demand of service tax of Rs 19,08,000/- confirmed on the remuneration paid to Four directors, the appellant submits that it has been alleged in the impugned order that they were not full-time employees of the company; the Directors were also working in other companies; the Remuneration has been paid as professional fee for services rendered. Accordingly, it has been held that the remuneration paid to Directors are taxable under RCM as per Notification No. 30/2012-ST. 7.1. The Appellant submits that remuneration has been paid to the directors as salary and on such amount TDS was also deducted under the salary head Unser section 192 of the Income Tax Act, 1961& Form 16 was being issued to such directors. In view thereof, it is submitted that the service provided by Director as an employee to the employer is not liable to pay service tax as per Section 65B (44) of the Finance Act, 1994. 7.2. As per the above sub clause (b) of sub- Section (44) of Section 65 of Finance Act, 1994, it is clear that provision of any service by an employee to the employer in case of his employment does not fall under the definition of service. As pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch of mechanically invoking service tax merely based on dual appointments, without appreciating the actual nature of engagement (executive vs. non-executive) and without rebutting the salary and TDS documentation, is contrary to law and binding departmental clarifications. 7.6. Reliance in this regard is placed on the following rulings: * Amara Raja batteries v. Commissioner (2024) 21 Centax 216 (Tri.-Hyd) * Power Mech Projects Ltd. v. Commissioner 2025 (3) TMI 965 - CESTAT Hyderabad * Allied Blenders & Distillers Pvt. Ltd. v. Commissioner 2019 (24) G.S.T.L. 207 (Tri. - Mumbai) * Lalitha Chem Industries Ltd. v. Commissioner 2024 (11) TMI 1185 - CESTAT Ahmedabad * Maithan Alloys Ltd v. Commissioner of C.Ex & ST, Bolpur [2019 (4) TMI 1595 - CESTAT KOLKATA] 7.7. Thus, the demand of service tax under reverse charge mechanism on amounts paid as salary to the four directors, where TDS has been duly deducted under Section 192 and Form 16 issued, is unsustainable and the impugned order is liable to be set aside on this ground also. 8. That the Appellant further submits that the CENVAT Credit availed by it is duly admissible. CENVAT Credit of the invoices raised by M/s Ana....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and perused the appeal documents. 11. Regarding the demand of service tax Rs.56,159/- confirmed on the sale of sweet boxes, I find that the supply of sweet boxes is a transaction of sale of goods and no element of service involved in the said transaction. The dominant nature of the transaction was sale only, and no services, amenities etc. were offered to the customers along with the sale of sweet boxes. The mere fact that the Appellant is registered as an outdoor catering service provider cannot be the reason to conclude that all transactions undertaken by them would be taxable under outdoor catering service. I find that when the sweet boxes were delivered as per customer order, It is a sale of goods and the said transaction cannot be treated as outdoor catering service simply because the seller is registered under that category. I have perused the copy of the sample invoices submitted by the appellant. The invoices clearly indicate that the transaction was a sale. Accordingly, I hold that no service tax is liable to be paid on a transaction which is a pure 'sale'. 11.1. I find that this view has been taken by the Tribunal Chennai in the case of Hotel Priya v. Commissioner 2018 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e customer such as providing the lighting arrangements, furniture and fixtures, floor coverings etc. The services provided by him cover method and manner of decorating and organising the mandap. The mandapkeeper provides the customer with advice as to what should be the quantum and quality of the services required keeping in view of the requirement of the customer, the nature of the event to be solemnized etc. In fact the logistics of setting up, selection and maintenance is the responsibility of the mandap-keeper. The services of the mandap-keeper cannot possibly be termed as a hire purchase agreement of a right to use goods or property. The services provided by a mandap-keeper are professional services which he alone by virtue of his experience has the wherewithal to provide. A customer goes to a mandapkeeper, say a star hotel, not merely for the food that they will provide but for the entire variety of services provided therein which result in providing the function to be solemnized with the required effect and ambience. Similarly the services rendered by out door caterers is clearly distinguishable from the service rendered in a restaurant or hotel inasmuch as, in the case of o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oviding 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 services. Since the appellant are preparing mid day meals in their Institute and not in the schools where the meals are served and are not involved in serving of the meals in any manner, in our view they are not covered by the definition of "outdoor caterer" and hence their activity of preparing and supplying meals for mid day scheme would not be covered by the definition of taxable service under Section 65(106(zzt) Accordingly the duty demand on this count would not be sustainable." 7. From the discussions made above and also from the facts presented before us, we are of the considered opinion that the activity does not fall within the definition of outdoor catering service. The demand therefore cannot sustain. The impugned order is set aside and the appeal is allowed with consequential relief, if any." 11.2. In view of the above findings, I hold that the demand of service tax Rs.56,159/- confirmed on the sale of sweet boxes is not sustainable and hence I set aside the same. 12. Regarding the demand of service t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....port companies, as annexed page Nos. 36, 37 & 38, I find that these transporters have categorically stated that the Service Tax liability for the invoices raised on the appellant has been discharged by them and they had also mentioned their Service Tax registration number and PAN number in their certificates. As against such documentary evidences, the first appellate authority's findings as to no authentic documentary evidence has been produced, seems to be incorrect. Since the certificates clearly indicate the Service Tax registration number, the least that could have been expected from the Revenue, was to call for the details from the concerned jurisdictional Service Tax authorities. Having not done, the lower authorities cannot shift the entire blame on the appellants for having not produced any authentic documentary evidence. 9. I find that the decision of this Bench in the cases Navyug Alloys Pvt. Ltd. (supra), Mandev Tubes (supra) and Geeta Industries Pvt. Ltd. (supra) will squarely cover the issue in favour of the assessee. I also find that CBEC vide Circular dated 17-12-2004, specifically in para 5.7 stated that; "If Service Tax due on transportation of a consignment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing Director / Directors (whole time, or Independent) by the company, (ii) applicability of service tax on Independent Directors who are part of the Board of Directors under 'Management Consultant service'. 2. Both the matters have been examined by the Board and the clarifications are as under, - (i) Some Companies make payments to Managing Director/Directors (Whole-time or Independent), terming the same as 'Commissions'. The said amount paid by a company to their Managing Director/Directors (Whole-time or Independent) even if termed as commission, is not the 'commission' that is within the scope of business auxiliary service and hence service tax would not be leviable on such amount. (ii) The Managing Director / Directors (Whole-time or Independent) being part of Board of Directors perform management function and they do not perform consultancy or advisory function. The definition of management consultant service makes it clear that what is envisaged from a consultant is advisory service and not the actual performance of the management function. The payments made by Companies, to Directors cannot be termed as payments for providing management co....