The Allahabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that the concepts of restaurant services and outdoor catering are distinguishable and the providing of food maintaining a menu card with fixed price personal interaction with the service recipient is restaurant service.
In the instant case, the appellant was providing food services in the premises of Noida Golf Course at Noida under an agreement for a consideration of Rs. 3 lakhs per month. For the above services, they were remitting service tax under the head ‘restaurant services’. The department held that the respondent falls under the category of “outdoor catering service” and the said service is taxable since 2003.
After analyzing the definitions given under the Act, the bench noted that the “outdoor catering service” is to be provided at the premises of the service recipient at his own premises or the premises were taken on hire by the service recipient whereas in the case of “restaurant service” to be provided by the service provider in its own premises.
Allowing the contentions of the assessee, the bench observed that “Admittedly, in this case, the place of service had been provided by the respondent as taken on rent from Noida Golf Course. In that circumstances, place, where the service has been provided, is the premises of the respondent. Further, we find that the issue where the service undertaken by the respondent is a restaurant service or the “Outdoor Catering Service‟ has been examined by the From the above observation of the Hon‟ble Apex Court, it is clear that the service of restaurant and outdoor caterer are distinguishable. Admittedly the services provided by the respondent in a restaurant of Noida Golf Course are in the nature of „restaurant service‟ as respondent is maintaining menu card, prices fixed in every item and there is no personal interaction with the service recipient in the restaurant. In that circumstances, we hold that the services provided by the respondent do qualify as „restaurant service‟. Therefore, no demand is sustainable against the respondent under the category of “outdoor catering service”.
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