SREE ANNAPOORNA HOSPITALITY SERVICES PVT. LIMITED Vs. THE COMMISSIONER OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX

JUDGEMENT

(1.) The petitioner has come forward with this writ petition challenging the order of the respondent dated 26.12.2014 and consequently to direct the respondent to consider the decision of Larger Bench in the case of Hindusthan Aeronautics Ltd., V. Commissioner of Service Tax, Bangalore,2013 32 STR 783 and pass fresh order.

(2.) The petitioner is providing services of out-door catering services to various customers including institutional customers such as M/s. Lakshmi Machine Works Ltd., M/s. Hindustan Photo Films, M/s. Parry Roca Private Ltd., and M/s. Tamil Nadu Newsprint and Papers Ltd., on mutually agreed terms. In the course of their business, the Audit Team of the department sent them a letter dated 03.04.2013 with regard to split up cost of materials and services. Further, a show cause notice dated 20.09.2013 was issued to the petitioner proposing the differential service tax on Out Door Catering Services for the period from 01.04.2008 to 31.03.2012 under proviso to sub-section (1) of Section 73 of Finance Act, 1994. The petitioner sent their reply dated 16.12.2013 to the show cause notice and also attended personal hearing held on 21.04.2014 and opted Notifications as regards sale of ingredients. However, the adjudicating authority held that the petitioner is not eligible for the benefit of Notification No. 12/2003-ST and impugned order dated 26.12.2014 has been passed. Aggrieved by the same, the present writ petition is filed.

(3.) The learned counsel for the petitioner submitted that the Adjudicating Authority has wrongly placed reliance on the decision in the case of Sayyaji Hotels instead of the case of Hindusthan Aeronautics Ltd., v. Commissioner of Service Tax, Bangalore,2013 32 STR 783 and further cited Section 7(1)(b) of Tamil Nadu Value Added Tax Act, 2006 regarding sale of goods by presuming that the petitioner is a dealer and of un-branded nor is the food ready-to-eat. He further submitted that without considering the valuable points adduced by the petitioner, the adjudicating authority had stated in his order that sale means any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration, thus, the adjudicating authority erred in so deciding that the petitioner is not eligible for the benefit of Notification No. 12/2003-ST. He further submitted that the petitioner is willing to pay 25% of the impugned demand and prayed this Court to remit the matter to adjudicating authority for consideration.