Service Portion in Supply of Foods & Drinks

Service Portion in Supply of Foods & Drinks
By: Dr. Sanjiv Agarwal
Service portion in an activity wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity is a declared service. [Section 66E(i)].

In terms of article 366(29A) of the Constitution of India supply of any goods, being food or any other article of human consumption or any drink (whether or not intoxicating) in any manner as part of a service for cash, deferred payment or other valuable consideration is deemed to be a sale of such goods. Such a service therefore cannot be treated as service to the extent of the value of goods so supplied. The remaining portion however constitutes a service. It is a well settled position of law, declared by the Supreme Court in BSNL`s case [2006 (3) TMI 1 - SUPREME COURT], that such a contract involving service along with supply of such goods can be dissected into a contract of sale of goods and contract of provision of service. This declared list entry has been incorporated to capture this position of law in simple terms.

It may be noted that definition of service in section 65B(44) now contains an exclusion in

clause (1A) in relation to transfer, delivery or supply of goods which are deemed to be sale under clause 29A of Article 366 of the Constitution.

Although services provided by any kind of restaurant are covered in this entry, the emphasis is to levy tax on services provided by only such restaurants where the service portion in the total supply is substantial and discernible. Thus the following category of restaurants are exempted –

Services provided in relation to serving of food or beverages by a restaurant, eating joint or a mess, other than those having the facility of air-conditioning or central air-heating in any part of the establishment, at any time during the year, and which has a license to serve alcoholic beverage.
Below the threshold exemption
The following activities are illustration of activities covered in this entry-

Supply of food or drinks in a restaurant;
Supply of foods and drinks by an outdoor caterer.
The value of service in this case shall be determined as per Rule 2C of the Service Tax (Determination of Value) Rules, 2006. In terms of the said rule value of the service portion shall be determined in the following manner-

Value of service portion…..

Shall be ….. percentage of the total amount charged:



In a restaurant



40

By an outdoor caterer

60



`Total amount' referred to in the second column of the table above would be the sum total of gross amount and the value of all goods supplied free of cost for use in or in relation to the supply of food or any other article of human consumption or any drink, under the same contract or any other contract.

So far as cenvat credit is concerned, in terms of the Explanation 2 to the valuation rules, any goods meant for human consumption classifiable under chapters 1 – 22 of Central Excise Tariff are not `inputs' for provision of such service. Cenvat Credit is, therefore, not available on these items. Availability of Cenvat credit on other inputs, input services and capital goods would be subject to the provisions of the Cenvat Credit Rules, 2004 including the provisions relating to reversal of credits contained in rule 6.

Abatement

Vide Notification No. 13/2012-ST dated 17.03.2012, w.e.f. 1-7-2012, abatement @ 30 per cent is available from value of taxable service in respect of supply of food or any other article of human consumption or any drink, in a premises, including hotel, convention center, club, pandal, shamiana or any other place specially arranged for organizing a function provided that cenvat credit on any goods classifiable under Chapter 1 to 22 of Central Excise Tariff Act, 1985 used for providing taxable service has not been taken.

Exemption from Service Tax

Following services are exempt from levy of Service Tax vide Notification No. 12/2012-ST dated 17.03.2012 —

(a) serving of food or beverages by a restaurant without bar license and without facility of air conditioning.

(b) services provided to educational institutions by way of catering under a Government sponsored centrally assisted mid-day meal scheme.

Payment under Reverse Charge

The payment of service tax in respect of works contract services shall be made by both, service provider as well as service receiver on shared basis.

In terms of Notification No. 15/2012-ST, dated 17.3.2012, service receiver shall pay 50% of the service tax on reverse charge basis and 50% shall be paid by the service provider.

Position prior to Finance Act, 2012 (upto 30-6-2012)

These services were covered under Outdoor catering services u/s 65(105) (zzt) and Restaurant services u/s 65(105)(zzzzv).