TaxTMI 
TaxTMI 
2023 (3) TMI 1637
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.... service? 2. Heard Shri N. Viswanathan, Learned Advocate for the appellant and Shri R. Rajaraman, Learned Assistant Commissioner for the Revenue. We have perused the documents placed on record and have also meticulously gone through the decisions/orders relied upon by both the parties during the course of arguments. 3. Facts are not in dispute and hence, we refer to the impugned orders to extract some of the facts which are relevant for the disposal of these appeals. The appellant is engaged in the business of manufacture and sale of coffee and tea vending machines and they are also engaged in the supply of coffee/tea in their clients' premises. The appellant had obtained Service Tax registration under `outdoor catering' and `maintenance and repair service'. They were promptly remitting Service Tax up to September 2008, but however, it appears that they had stopped paying the Service Tax with effect from October 2008. It appears that the above fact was noticed during the audit of accounts of the appellant and it was the Revenue's case that, on verification of the records of the appellant, they had noticed that the appellant would supply coffee, tea and milk to....
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.... (iii) M/s. Tamil Nadu Kalyana Mandapam Assn. v. Union of India [2004 (167) E.L.T. 3 (S.C.)]; (iv) Indian Railways C&T Corpn. Ltd. v. Govt. of NCT of Delhi [2010 (20) S.T.R. 437 (Del.)]. and other orders, of co-ordinate Benches of the CESTAT, namely : - (i) M/s. Ambedkar Institute of Hotel Mgmt. v. C.C.E., Chandigarh [2015 (40) S.T.R. 823 (Tri. - Del.)]; (ii) M/s. Hotel Priya v. Commissioner of G.S.T. & Central Excise, Chennai [Final Order No. 42288 of 2018 dtd. 16.08.2018 - CESTAT, Chennai]; (iii) M/s. Goldline Hospitality Solutions (P) Ltd. v. The Commissioner of G.S.T. & Central Excise, Chennai South [Final Order No. 40160 of 2019 dtd. 23.01.2019 - CESTAT, Chennai]; (iv ) M/s. Sri Ponnusamy Caterers v. The Commissioner of Service Tax, Chennai [Final Order No. 40131 of 2022 dtd. 07.04.2022] 7.1 Per contra, the Learned Assistant Commissioner for the Revenue, while relying on the findings of the Adjudicating Authority, had also contended that the scope of the work/activity undertook by the appellant clearly fall under the definition of "caterer" as per Section 65(24) of the Finance Act, 1994 and "outdoor caterer" as defined in....
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....r rented out or lent, free of cost to its clients / customers and it is an admitted fact that the appellant would also effect sale of ingredients required for the preparation of coffee or tea, like premix coffee, tea, sugar, milk, etc., to its customers. For this, the appellant collects charges on `per cup' basis from its clients, monthly. It is also an undisputed fact that the appellant had remitted applicable State levies, like VAT, on those materials / ingredients which were supplied by it. It is also an undisputed fact that the appellant is supplying the above to its clients' premises and that the 'activity' is at a place other than its own place. 11.2 From the above, it is very much clear to us that the appellant has indeed satisfied the requirements of "caterer" and, because of the provision of service at a place other than his place, he has also satisfied the conditions under "outdoor caterer", as defined in the respective Sections under the statute. 12. We shall now consider the next claim of the appellant as to the supply of ingredients also, for which VAT appears to have been paid. 13.1 The agreement/contract inter-se parties, here, is for providi....
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...., for clarity) and finally, the Hon'ble Court has concluded, at paragraph 57, as under: - "57. A tax on services rendered by mandap-keepers and outdoor caterers is in pith and substance, a tax on services and not a tax on sale of goods or on hire purchase activities. Section 65 clause 41 sub-clause (p) of the Finance Act, 1994, defines the taxable service (which is the subject matter of levy of service tax) as any service provided to a customer by a mandap-keeper in relation to use of a mandap in any manner including the facilities provided to a customer in relation to such use also the services, if any, rendered as a caterer. The nature and character of this service tax is evident from the fact that the transaction between a mandap-keeper and his customer is definitely not in the nature of a sale of hire purchase of goods. It is essentially that of providing a service. In fact, as pointed out earlier, the manner of service provided assumes predominance over the providing of food in such situations which is a definite indicator of the supremacy of the service aspect. The legislature in its wisdom noticed the said supremacy and identified the same as a potential regi....
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....rent problem at hand. Appellant admittedly is a service provider. When it provides for service, it is assessable to a tax known as service tax. Such tax is leviable by reason of a Parliamentary statute. In the matter of interpretation of a taxing statute, as also other statutes where the applicability of Article 246 of the Constitution of India, read with Seventh Schedule thereof is in question, the Court may have to take recourse to various theories including 'aspect theory', as was noticed by this Court in Federation of Hotel & Restaurant Association of India, etc. v. Union of India & Ors. [(1989) 3 SCC 634]. 25. If the submission of Mr. Hegde is accepted in its entirety, whereas on the one hand, the Central Government would be deprived of obtaining any tax whatsoever under the Finance Act, 1994, it is possible to arrive at a conclusion that no tax at all would be payable as the tax has been held to be an indivisible one. A distinction must be borne in mind between an indivisible contract and a composite contract. If in a contract, an element to provide service is contained, the purport and object for which the Constitution had to be amended and clause 29A had to....
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....erages or crockery and similar articles or accoutrements. Secondly, this supply may be for any purpose or occasion. A purpose is an effectuation of a particular object. An occasion is an event defined with reference to time which may take place either as an isolated occurrence or be sporadic or periodical. Thirdly, the supply may be directly by the person himself or indirectly through another. In order to be an outdoor caterer within the meaning of clause (76a), a person must, at the outset, be a caterer. Clause (76a) provides a statutory definition of who is regarded as an outdoor caterer. A caterer is an outdoor caterer because services in connection with catering are provided at a place other than his own. The use of the expression 'in connection with catering' broadens the ambit of the definition by bringing within its purview not merely a service of catering but a service which has a connection with catering. The place where the service is to be provided must be a place other than that of the caterer himself. The inclusive part of the definition includes a place which may be provided to the caterer by the person receiving the service either by an agreement of tenancy o....
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.... Excise dated 23 August, 2007, which is sought to be relied upon by the assessee, in fact, also contains a clarification that the deeming supply of a food in a restaurant as a sale does not, in any way, bar the levy of Service Tax on the service provided by outdoor caterers, which is primarily a tax on service rendered by the outdoor caterer. 15. For the aforesaid reasons, the authorities below were justified in confirming the demand for Service Tax." (Emphasis supplied by us, in bold, for clarity) 14. From the above guiding and binding decisions of the higher judicial fora we find that what is relevant is the pith and substance of the contract between the parties, which in the case on hand, is the provision of service, viz., providing coffee/tea/milk and, hence, we are of the view that the demand of Service Tax has been correctly raised on the appellant. Therefore, we do not find any reasons to interfere with the findings in the impugned orders. 15.1 The Learned Advocate for the appellant referred to and relied on various judgements/orders to buttress his arguments that the service rendered, if at all, would amount to works contract service since the same involve....