TaxTMI 
TaxTMI 
2026 (4) TMI 298
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....80, Shantipally, Kolkata-700107, wherein the Ld. Commissioner (Appeals) has upheld the demands confirmed in the Order-in-Original dated 26.04.2019. 2. The brief facts of the case M/s. Trimax Foods Pvt. Ltd (herein after referred as the appellant) are registered as provider of taxable services, viz. "restaurant service" and "business auxiliary service", as defined under Section 65B(44) and Section 66E(i) of the erstwhile Chapter-V of the Finance Act, 1994. In course of departmental Audit of the Financial records of the appellant, for the period 2013-14 to 2017-18 (upto June, 2017), the officers observed that the appellant had availed CENVAT Credit on common Input Services used against manufacture and clearance of exempted goods as well as....
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....e appellant submits that they were paying service tax as per Rule 2Cof the Service Tax (Determination of Value) Rules, 2006, there is no need for any reversal of credit under rule 6(3) of the CENVAT Credit Rules, 2004. The appellant submits that the Ld. adjudicating authority has considered the balance 60% of the total amount charged as value for sale of foods. In terms of Notification No. 12/2012-CE dated 17.03.2012 (SIS No. 12 & 13) these sales of food attract NIL rate of duty and hence sales of food in the restaurant would be treated as exempted goods in term of Rule 2(d) of CENVAT Credit Rule, 2004. The appellant submits that this view expressed by the Ld. adjudicating authority is totally flawed since the 60% abatement given cannot be ....
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....on of Value) Rules, 2006, the value of service portion involved in supply of food and drinks in a restaurant shall be 40% of the total amount charged. The department was of the view that in terms of Notification No. 12/2012-CE dated 17.03.2012 (SIS No. 12 & 13) these sales of food attract NIL rate of duty and hence sales of food in the restaurant would be treated as exempted goods in term of Rule 2(d) of CENVAT Credit Rule, 2004. We find that this observation of the Ld. adjudicating authority is totally flawed. We observe that the Ld. adjudicating authority has ignored the clarification issued by the Board vide Circular No.213/3/2019-Service Tax dated 5th July 2019, wherein it has been clarified that the Restaurant Service provider paying t....
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....nd others had held that both restaurant service and accommodation service cannot be subjected to service because they do not fall in the definition of exempted service and therefore the question of reversal of Cenvat credit does not arise. For the subsequent period from 1-5-2011 to 30-6- 2012, the appellant availed abatement with respect to restaurant service and accommodation service as per Notification No. 1/2006-S.T., dated. 1-3-2006. During the relevant time, availment of abatement vide Notification No. 1/2006- S.T., dated 1-3-2006 cannot be considered as exempted service for the purpose of reversal of Cenvat credit as per Rule 6 of CCR. Further for the demand for the period from 1-7- 2012 to 31-3-2013, the definition of exempted servic....
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....atement nor as an exemption and accordingly we hold that the restaurant service would not be covered under the definition of input service and hence the provisions of Rule 6 of CCR are not applicable. We also note that for the subsequent period from 1-4- 2013 to 31-3-2014, this Tribunal vide its Final order No. 21118/2018, dated 8-8-2018 has allowed the appeal of the appellant by holding that restaurant service and accommodation service on which abatement is claimed by the appellant are not exempted services as defined under Rule 2(e) of the CCR. Further we find that during the relevant period in both the cases, the appellants have availed the total Cenvat credit of Rs. 23 lakhs (approx.) whereas vide the impugned order, the Commissioner is....