M/s. Fast Track Pvt. Ltd. Versus The Commissioner of GST & Central Excise, Chennai South Commissionerate
Service Tax
2018 (9) TMI 1067 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 26-6-2018
Appeal No. ST/00397/2010 – Final Order No. 41885/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri J. Shankaraman, Advocate for the Appellant
Shri R. Subramaniyan, AC (AR) for the Respondent
ORDER
Per Bench,
Brief facts are that the appellants were issued Show Cause Notice demanding service tax under the category of franchise services for the period 16.06.2005 to 31.03.2007. After due process of law, the original authority confirmed the demand of Rs. 5,77,336/- along with interest and also imposed penalty under Section 76 and 78 of the Finance Act, 1994. In appeal, the Commissioner (Appeals) waived the penalties imposed, invoking Section 80 of the Finance Act, 1994. Aggrieved by the confirmation of dem
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attracted all the four conditions stated in the definition of 'franchise'. Since the appellant was free to cater to other customers also and thus, did not fulfil the fourth condition in the definition of 'franchise', the appellant was under bona fide belief that their services did not attract service tax. That with effect from 01.03.2006 the appellant has been paying service tax under Business Auxiliary Services which has so far not been disputed by the Department. He, therefore, contended that the issue being interpretational and the appellant having no intention to evade service tax, failure to make the payment, being only because of interpretational issue, the demand for the extended period cannot sustain. He argued that the Department has not produced any iota of evidence to establish that the appellant is guilty of suppression of facts.
3. The learned AR, Shri R. Subramaniyan, supported the findings in the impugned order. He submitted that non-payment of service tax would not hav
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of the vehicle owner not to cater to other customers. Thus, the driver/owner can cater to the requirements of other customers also even though they have entered into an agreement with the appellant. With effect from 16.06.2005, the amended definition is as under:
“Franchise” means an agreement by which –
(i) The franchisee is granted representational right,
(ii) To sell or manufacture goods or to provide service or undertake any process identified with franchisor,
(iii) Whether or not a trade mark, service mark, trade name or logo or any such symbol, as the case may be, is involved.
6. Thus, the fourth limb of the earlier definition has been given go-by after 16.06.2005 and hence, the argument of the learned Counsel that the issue is an interpretational one is not without force. It is also stated that with effect from 01.03.2006, the appellant has been discharging service tax on the very same services under Business Auxiliary Services and the Department has accepted the same
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