Case Law Details
Commissioner of Customs Vs M/s. Fortune Cookie (Cestat Allahabad)
In this case Service Tax sought to be demanded from the respondent under the category of “outdoor catering service”, which is required to be examined as defined in section 65(76)(a) of the Finance Act, 1994. “Outdoor caterer “means a caterer engaged in providing services in connection with catering at a place other than at his own but including a place by provided by way of tenancy or otherwise by person receiving such services and the “restaurant service‟ means as per 65(105)(zzzzb) “any service provided or to be provided to any person, by a restaurant, by whatever name called having the facility of air conditioning in any part of the establishment, at any time during the financial year, which has license to serve alcoholic beverage in relation to serving of food or beverage including alcoholic beverage or both in its premises”.
On examination of both the definitions, the “outdoor catering service” is to be provided at the premises of the service recipient at his own premises or the premises 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. 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 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 Honble Apex Court in the Tamil Nadu Kalyana Mandapam Assn.’s case (supra) wherein the Honble Apex Court has observed as under:-
“Similarly the services rendered by out door caterers is clearly distinguishable from the service rendered in a restaurant or hotel inasmuch as, in the case of outdoor catering service the food/eatables/drinks are the choice of the person who partakes the services. He is free to choose the kind, quantum and manner in which the food is to be served. But in the case of restaurant, the customer’s choice of foods is limited to the menu card. Again in the case of outdoor catering, the customer is at liberty to choose the time and place where the food is to be served. In the case of an outdoor caterer, the customer negotiates each element of the catering service, including the price to be paid to the caterer. Outdoor catering has an element of personalized service provided to the customer. Clearly the service element is more weighty, visible and predominant in the case of outdoor catering. It cannot be considered as a case of sale of food and drink as in restaurant.”
From the above observation of the Honble 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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