TaxTMI 
TaxTMI 
2026 (9) TMI 551
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....to 2015-16. 2. The brief facts are the Appellant is engaged in catering services and registered under service tax under the category of 'outdoor Catering Services'. During verification of the records, it is found that Appellant failed to pay service tax as applicable. Accordingly, show cause notice was issued on 28.11.2016 and Adjudication Authority as per the impugned order dated 28.03.2017 confirmed the demand along with interest and also imposed penalty. Aggrieved by said order, an appeal was filed before the Commissioner (Appeals) and Commissioner (Appeals) as per the impugned order dated 19.09.2018 rejected the appeal. Aggrieved by said order, present appeal is filed. 3. When the appeal came up for hearing, the Learned Co....
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....pellant supplies food at a place other than their own and hence chargeable to service tax under section 65(105(zzt) of the Finance Act. 1944. After 01.07.2012, the Services performed by the Appellant by way of supplying ready to eat food and the activity involves significant element of service. Hence, Free Home Delivery (FHD) is falling under purview of 'outdoor caterer' definition in erstwhile Service Tax law. Further as per the finding in impugned order, since the Appellant supplies food at customer premises, which is beyond the place of production of food, by virtue of Section 2(h) of the Central Excise Act, it does not constitute pure sale; whereas a service element, other than sale is involved in their activity of supply of foo....
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....s as below:- (105):- Taxable service means any service provider or to be provided to any person by an outdoor caterer. ............... .............. (zzt) to any person by an outdoor caterer; ............... 7. Learned Counsel further submits that the objective of the contract executed between the Appellant and his customer is to deliver the ready to eat food at the customer's premises. Property in goods passes at the time when the parties to the contract intend it to be transferred. Title in goods is said to be passed to the buyer at the point when risk and rewards in the goods are passed and the buyer does not retain the right to reject the goods. In the instant case the title in the fo....
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....cases, demand confirmed by invoking extended period of limitation and penalty are unsustainable. 10. Learned Authorized Representative (AR) for the Revenue reiterated the finding in the impugned order and submits that the manner of treatment of composite transactions, which in addition to a transfer of title in goods involve an element of provision of service has been laid down by the Hon'ble Supreme Court in the case of M/s. BSNL - [2006(2)STR161(SC)], as per which in the cases of works contract and service wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as part of the service the dominant nature test does not apply and service portion is taxabl....
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....n 2(h) of the Central Excise Act, 1994 and as decided by the Hon'ble Supreme Court, it does not construe pure sale; whereas a service element, other than sale is involved in their activity of supply of foods at the premises of customer, and as such carries the activity as mentioned in clause (i) to section 66E, which read as follows: (i) Service portion in an activity 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. 11. Learned Authorized Representative (AR) further submits that it is evident that there is no specification of personalized service or serving of food to customer, but the service portion in an acti....
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....hority rightly confirmed the demand. 13. Heard both sides and perused the records. 14. We find that prior to 01.07.2012, the activities considered as sale of goods where service tax was not paid by the appellant are falling under the category of 'caterer' as per Section 65(24) of the Finance Act, 1944. However, thereafter from July 2012 onwards as per Section 65E(i), "Service portion in an activity 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" is covered under declared service. Free Home Delivery (FHD) activity is undertaken by the Assessee by way of supplying ready to eat food and other articles for human cons....