Page 124 - GSTL_14th May 2020_Vol 36_Part 2

226 GST LAW TIMES [ Vol. 36
NTPC and LANCO. The inclusive part of clause (76a) expands the defini-
tion to a place provided by way of tenancy or otherwise by the person re-
ceiving such services. NTPC and LANCO have engaged the services of the
assessee as an outdoor caterer and the assessee is an outdoor caterer be-
cause services in connection with catering are provided by it at a place oth-
er than a place of the assessee.
10. Consequently, on a plain and literal construction of the provisions of
Section 65(105)(zzt) read with the definitions of the expressions ‘caterer’
and ‘outdoor caterer’ as contained in clauses (24) and (76a), it is evident that
the assessee is subject to the levy of Service Tax. The assessee provides to
any person, to wit, NTPC or LANCO, the service of an outdoor caterer. In
our view, there is a fundamental fallacy in the submission of the assessee
that it should be held not to fall within the definition of the expression
‘outdoor caterer’ on the ground that the food, edibles or beverages are pro-
vided not to NTPC or LANCO but to their employees, customers and
guests. That, in our view, begs the question. The taxable catering service
cannot, in our view, be confused with who has actually consumed the food,
edibles and beverages which are supplied by the assessee. Taxability or the
charge of tax does not depend on whether and to what extent the person
engaging the service consumes the edibles and beverages supplied, wholly
or in part. What is material is whether the service of an outdoor caterer is
provided to another person and once it is, as in the present case, the charge
of tax is attracted.”
5.7 The expression ‘outdoor catering’ has not been defined under the
CGST Act, 2017/SGST Act, 2017 or the notifications issued thereunder. Never-
theless, the observations made in the aforesaid judgment of the Hon’ble High
Court are relevant for deciding the present issue. In the said judgment, the
Hon’ble High Court has observed that the taxable catering service cannot be con-
fused with who has actually consumed the food, edibles and beverages which
are supplied by the assessee. It is also held that the taxability or the charge of tax
does not depend on whether and to what extent the person engaging the service
consumes the edibles and beverages supplied, wholly or in part.
5.8 In the present case also, services in connection with catering are
provided by the applicant at a place other than a place of the applicant. Further,
the service of catering is provided by the applicant to the recipient and the fact
that the meal, snacks, tea etc. are consumed by the workers/employees of the
recipient, would not alter the nature of service provided by the applicant.
5.9 In view of the above, up to 25-7-2018, the said supply of services of
the applicant is taxable under “Accommodation, food and beverages services” as
a part of “Outdoor Catering Services” and is covered under Sr. No. 7(v) of the Table
to the Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017, as amended
up to 25-7-2018, issued under the Central Goods and Services Tax Act, 2017 and
Notification No. 11/2017-State Tax (Rate), dated 30-6-2017, as amended up to 25-
7-2018, issued under the Gujarat Goods Services Tax Act, 2017, attracting GST @
18% (CGST : 9% + SGST : 9%).
B. Taxabilty w.e.f. 26-7-2018 :
6.1 Notification No. 13/2018-Central Tax (Rate), dated 26-7-2018 seeks
to amend, Notification No. 11/2017-Central Tax (Rate) so as to notify CGST rates
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