Karnataka High Court
Commissioner Of Service Tax vs M/S Lsg Sky Chef India Pvt Ltd on 20 April, 2011
Bench: N.Kumar, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA AT BANGALQ:§§:._V_ DATED THIS THE 20'??? DAY OF APRIL 2<3;'1"l* 5 ;_. ll PRESENT THE HONBLE MR.
THE HONBLE M_R.JUSTICl§;'vRAR[l 1v1ALI1\.r.1A'U;l cEA."N£$,_--_1_._Qg;L_ 2063.. _ BETWEEN C:OI'HI1'llSSlOU§€l' _ 'l _ Service Tax C.QnitI:'lssi0tier2i'te, .. No.16, S.*F;'evCQInpleX-,5 VLalbagh ready Bangalore - _ _* ...APPELLANT {By Sri. 'Seli'lier«Standing Counsel) AND:,--.. L
- "ezsgzz/s,f/'sc;'.s1g*x: chef':'haia Pvt Ltd, Bagm.an,e 'Erielénze, Adjeeent to LRDE, ' l:fj,§'s£f Ra:n'¢1,n"Naga}s: Posts Ba,nga.lore e356Q'093. ...RESPONDEN"£' =!<*>l'» " r T his CEA filed under section 35G of the Central Excise "--,élet_, 1334-4 arising Gui; Of Order dated l6/{El/2009 passed in F£.nal"Order Ne, 24/2009, praying to decide the substantial question of law sated therein, set aside the CESTAT, South cliente after deducting the abatement as per _ dated 10-943004 bearing No.20/oatef: upto1--2'e.§?}~2:oee-an«;§' Notification No.1/2o0e~eT elated 1!:3~2eoe..fiv I tax was paid only on a part the am~:)nnt ccllecuteo thet is only on the handling and transnortation which is in contravention of provisieng of the hinance Act, 1994.
3. 'It the et.ee'eeeee"'feceiVed an amount of for In--flight catering and the senttce after abatement works out to Klvhich the service tax liability xvorlgs out to R»s,V7'ES',1O2;é'l3.(.')/--. The assessee however paid a only. Hence the balance of amount I was sought to he recovered by them. Accnrdingl}; Show cause notice was issued. AA The assessee contended that they are eligible for
-- lexemetion under Notification No.12/2003 dated 20~6--2003 respect of the value of food and beverages served to the ''g, E 3 4 Airlines on payrnent of VAT. That in a transaction of sale of feed, the eiernent of service in connection with catering 'was only to the extent of handling and loading beverages on the aircraft. Hence they had ta -- that extent. The assessing authoritjt earnjeitd that in terms of Section 67 of the assess'esA.va1*e to pay service tax an the gr0sss».:am0untV" the various Airlines on catering' service provided by them. That' _.etear1j}_"_preseribes that the Value of gross amount charged by5 Further the exemption eIaimed"hj7' 12/2003 dated 20--6~2(5"Q3" is ".ti'i:s'tistainab1e. Accordingly, the assessing attth0rity_ C{)nfi.rrned the demand of a sum of /« aie»n.g...with interest and penalty. Aggrieved 'C%},7"' -the assessee preferred an appeat to the Ti"ibi1na1v.t '.':§Tejifie.a1'"V}ZV'ribunaI held that the assessee is entitied to the def Notification No.12/2003. That there is it "..flinC:i'usi0n of vahie of goods sold by the assessee and in View ' of the separate invoices raised for the feed and beverages afiitstm 5 .
having been supplied and having been pain for separateifg. the food supplied Should be treated as sale of- henee no service tax can be levied tothat e><:tent.---- .:'By"'rel3«iirig on the Judgment of the Honble Sn'prerne.. of BSNL Vs. UNION or INDIA' -z:;;por£'ed"in2oc»e{2; .:Sfl'R_:§i6l (S.C.} the benefit of Notification was applicable to the assessee. Aeeordingly,'l_V_theappealwas allowed. The imposition of penalty was... S:e_r~._asit;le_ai'it3iV ecunsequential reliefs were granted. ptreéenlt the revenue. 5, .. _"l'h1'_e :*a;:_)peal" .__Vi?a$3«.._.atlir1itted to consider the following st1ibsta'ni;ial'qneetions of 1aw:--
_"l. 'W'-Vhether 'A£l"3.eV(}1"l:Z'1€r of the CESTAT is legally ..4és;i1stainable" in conformity with the reasons .__V'l"an(iTproVisions of the Statute in its interpretation it . T. or _"'Qnt€:e.or:..Catering Services"?
"Whether, the Tribunal was right in not _ recognising the fact of supply of food and it heverages as an integral activity of "Outdoor 'Catering Service" which was recognised so by the VJ?' \.
4?
('E ;'»e'""
'3"»:} 9 disposed off in terms of the Judgment dated 18»4~2011 passed in Writ Appeal Nos.671 to 7236/2011. Conee.q_u.eht_iy, the substantial questions of law are answe1*ed_.i:}i"f:;$Ve1;f1-Qf' _ the assessee and against the revenue.
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