Service tax on preparation of mid day meals for school
Q : Whether activity of preparing and supplying meals for midday scheme from owned premises without actual serving of food at schools would be covered by the definition of taxable service under Section 65(106)(zzt) ?
Preparation of cooked food at owned premises and supply thereof to schools under midday-meal scheme (without actual serving of food at schools) would not amount to ‘outdoor catering services’
CESTAT, NEW DELHI BENCH
Ambedkar Institute of Hotel Management
Commissioner of Central Excise & Service Tax, Chandigarh
AND RAKESH KUMAR, TECHNICAL MEMBER
FINAL ORDER NOS. 51955-51956/2015
SERVICE TAX STAY APPLICATION NOS. 51876 AND 51923 OF 2014
SERVICE TAX APPEAL NOS. 51574 AND 51635 OF 2014
JUNE 15, 2015
Rakesh Khanna, CA, for the Appellant. B.B. SharmaDR, for the Respondent.
Rakesh Kumar, Technical Member – The facts leading to these appeals and stay applications are in brief as under:
1.1 The appellant are an autonomous body registered under the Societies Act, 1860. They are a part of the Ministry of Tourism and are managed by the Board of Governors consisting of representatives from Central Government and Union Territory Administration, Chandigarh. The appellant Institute, in terms of its memorandum of Association and as per the objectives listed therein, is associated, among other things, with the nutritional extension and developmental work and provides midday meal to the schools of Chandigarh Administration under the Government scheme. The appellant Institute prepares cooked food as per the fixed menu and supplies the same to various schools for which they received payment at certain rates. The department was of the view that this activity of the appellant is outdoor catering service taxable under Section 65(105)(zzt) of the Finance Act, 1994 read with Section 65 (77a) and Section 65(24) ibid. Besides this the appellant were also making available the space in their premises to various persons for their functions. The Department was of the view that this activity of the appellant is taxable under the Mandap Keeper Service. It is on this basis that show cause notice dated 12.03.2012 was issued for demand of Service tax amounting to Rs. 56,93,305/- for the period from October 2006 to March 2007 along with interest on it under Section 75 and for imposition of penalty on the appellant under Sections 76, 77 and 78 ibid and another show-cause notice dated 17.04.2013 were issued to the appellant for demand of service tax amounting Rs. 12,57,899/- for the period from 2011-12 along with interest under Sections 75 ibid and also for imposition of penalty on them under Sections 76, 77 and 78 of the Act.
1.2 The above show-cause notices were adjudicated by the Commissioner by a common order-in-original dated 06.12.2013 by which while in respect of show-cause notice dated 12.03.2012 service tax demand of Rs. 37,38,222/- was confirmed after adjusting the cenvat credit of Rs. 19,55.083/- and service tax demand of Rs. 7,83,131/- was confirmed in respect of second show-cause notice dated 17.04.2013 after adjusting the cenvat credit of Rs. 4,74,768/-. Thus, the total service tax demand confirmed against the appellant is Rs. 45,21,353/- along with interest. The Commissioner also imposed penalty of Rs. 45,21,353/- on the appellant under Section 78 besides imposition of penalty of Rs. 10,000/- under Section 77 of the Act. Against this order of the Commissioner these appeals along with stay applications are preferred.
2. Heard both the sides.
3. Though, the appeals are listed for hearing of the stay applications only, after hearing the matter fotr some time, the Bench was of the view that the matter can be heard for final disposal. Accordingly, the requirement of pre-deposit is waived and with the consent of both the sides, the matters are heard for final disposal.
4. Shri Rakesh Khanna, Chartered Accountant, ld. Counsel for the appellant, pleaded that the appellant Institute only prepares the cooked meal as per the fixed menu to be supplied to various schools of Chandigarh Administration; that the meals served in the schools are prepared only in the Institute and not in the schools where the same are to be served, that the appellant are not involved in serving of the meals in any manner; that in terms of Section 65(105) (zzt), taxable service means any service provided or to be provided to any person, by an outdoor caterer, that under Section 65(76a) outdoor caterer means any person engaged in providing services in connection with catering at a place other than his own but including a place provided by way of tenancy or otherwise by the person receiving such services, that under Section 65(24), a caterer means any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose or occasion; that what is taxable is the service provided by an outdoor caterer and for this purpose the outdoor caterer must provide the service at a place other than his own; that since the appellant was neither preparing the meals at the schools nor are supplying any crockery etc. for this purpose nor they are not involved in serving of the meals in the schools, their activity is not covered by the Section 65(zzt); that as regards Mandap Keeper service, they are covered by the definition of mandap keeper, but during the period of dispute their turnover on account of this service is well within the exemption limit of Notification No. 6/2005-ST and that in view of this the demand on account of this service is also not sustainable. It was, therefore, pleaded that the impugned order is not sustainable.
5. Shri B.B. Sharma, ld. DR defended the impugned order by reiterating the findings of the Commissioner.
6. We have considered the submissions of both the sides and perused the record. From the facts stated in the show-cause notice as well as in the order-in-original, it is seen that the appellant are preparing the meals as per the fixed menu which are to be served in various schools of Chandigarh Administration under the midday Meal Scheme of the Government. Neither there is any allegation nor there is any evidence to show that the appellant had prepared the meals at the schools where the same were to be served or were in any manner involved in serving the meals. Meals prepared by them are simply supplied at the predetermined rates to Education Department. The service which is covered under Section 65(105)(zzt) is the service provided or to be provided to any person by an ‘outdoor caterer’ and not by any caterer. The outdoor caterer as defined in Section 65(76a) means a caterer engaged in providing services in connection with catering at a place other than his own but including a place provided by way of tenancy or otherwise by the person receiving such services. Since the appellant are preparing midday meals in their Institute and not in the schools where the meals are served and are not involved in serving of the meals in any manner, in our view they are not covered by the definition of ‘outdoor caterer’ and hence their activity of preparing and supplying meals for midday scheme would not be covered by the definition of taxable service under Section 65(106(zzt). Accordingly the duty demand on this count would not be sustainable.
7. As regards the mandap keeper service alleged to have been provided by them during the period of dispute, we find that during each financial year during the period of dispute its turnover is well within the threshold limit of Notification No. 6/2005-ST and therefore they will be exempted from service tax.
8. In view of the above discussion, the impugned order is not sustainable. The same is set aside. The stay applications as well as the appeals are allowed.