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2014 (8) TMI 712 - AT - Service TaxWaiver of pre deposit - Franchise service or not - sub-license agreement - penalties under Section 76, 77 & Rule 7C read with section 70 - Held that:- Assessee was given the right to book, deliver, transshipment, handling, loading, unloading etc. and to carry out the business of courier by the ordinary buses of MSRTC. The said agreement by no stretch of imagination can be considered as a “franchise services” because MSRTC is not a courier service provider but merely transporter of goods. Further, the sub-licensee M/s ShriSai Transport and Courier Pvt. Ltd. cannot be considered as franchisee of Baba Trading Company as he is not representing M/s Baba Trading Company but MSRTC who is actually undertaking the transportation of the parcels/goods. As per the clarification issued by the CBE & C, classification under business support service will be effective from 01/05/2011 and not prior to that. Thus, as per the department itself, prior to 01/05/2011, there is no liability to pay service tax on the said activity. If a service is classifiable under business support service from a given date and the said service is not carved out of any of the existing services, it cannot be construed that service was taxable prior to that date. In the present case, therefore, the question of levying any service tax on the activity under the category of “franchise service” would not arise at all, inasmuch as the “business support service” has not been carved out of “franchise service”. In these circumstances, the appellant has made out a strong case for waiver of pre-deposit of the dues adjudged - Stay granted
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