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Jayasakthi Catering Services v/s Commissioner of Central Excise, Pondicherry

    Appeal No.ST/400 of 2009

    Decided On, 13 September 2010

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai


    Shri N. Viswanathan, Advocate. Ms. Indira Sisupal, JDR.

Judgment Text

1. Demand of service tax of Rs.3,53,592/- and education cess of Rs.7072/- confirmed against the assessees herein on the ground that they had rendered ?outdoor catering services? during the period 10.9.04 to 31.12.05, and penalty of Rs.3,61,764/- is challenged in the above appeal.

2. I have heard both sides. The appellant, a proprietary concern of Shri S.Balasubramaniyam, was an established hotel providing ?indoor catering service?, which was subsequently expanded to provide ?outdoor catering service?. The proprietor has stated that he is engaged in rendering ?outdoor catering service? to corporate customers such as M/s.HCL Infosystems Ltd. M/s.Cooper Bussmann India (P) Ltd., M/s.L&T Ltd. and others.

3. Shri P.B.Jerald, Asst. Manager of M/s. HCL Infosystems, Pondicherry has deposed that they had engaged the appellant to serve food and snacks prepared by them (the appellants) in their premises; that the appellant raised bills once in a week and payments were made through cheque; that in the bills raised by the appellant prior to Dec-05, there was no mention of service tax and they have not paid the appellants any amount as service tax.

4. Shri P.K.Narasimhan, Manager (Accounts) of L&T Ltd. has stated that the appellants were engaged by them for supply of snacks and others items during evenings for a short period from August 2005 to November 2005 at their premises; that bills were raised periodically by the appellants for the services rendered by them and the payments were made through cheque; that there was no mention about service tax payments in the bills raised by the appellant and they had not paid appellant any amount as service tax.

5. Shri G.Gowri Shankar, Senior Manager (Finance) of M/s.Cooper Bussmann Pvt. Ltd. has also stated to the same effect. The proprietor of the appellant has also admitted that he was engaged in rendering ?outdoor catering service? to the customers. In the face of the above admission, the plea of the assessees that they only supplied food items to their customers? office premises and that such delivery is not subject to service tax, as per para 11.4 of Ministry of Finance Circular No.80/10/2004-ST dt. 17.9.2004 is not tenable. The claim of the assessees for the benefit of exemption under Notification No.12/03-ST dt. 20.6.03 is also not acceptable in the absence of indication of value of goods and materials sold in the documents issued for providing taxable service.

6. As regards the assessees? claim to the benefit of 50% exemption provided in Notification No.20/2004-ST dt. 10.9.2004, which has been denied on the ground that the expression ?food? means ?a substantial and satisfying meal?, and hence wherever the service provider has supplied items other than meals, the condition stipulated in the notification is not satisfied, a perusal of the bills shows that they have been issued for meals also such as breakfast/lunch/dinner. Therefore, the claim to the benefit of this notification is required to be examined with reference to the bills of t

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he assessees. I, therefore, set aside the denial of the benefit in terms of Notification No.20/04 and remit this issue for fresh decision to the adjudicating authority, who shall satisfy himself with reference to the assessees? bills, that what was being supplied was ?food?. 7. The appeal is thus disposed of in the above terms.