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2019 (5) TMI 377 - AT - Service TaxBrand Promotion services - tripartite agreement - Indian Premiere League Playing Contract - tripartite agreement between the Board of Control for Cricket in India (BCCI), franchisee and the assessee the terms and conditions of which are common in respect of all the players/assessees except the remuneration - existence of employer-employee relationship or not - change of opinion - the service subsequently sought to be taxable under Business Support services - HELD THAT:- The employer-employee relationship cannot be disputed and that therefore, the decision in the case of SOURAV GANGULY VERSUS UNION OF INDIA & OTHERS [2016 (7) TMI 237 - CALCUTTA HIGH COURT] relied on by the Ld. Consultant for the assessees which decision has been followed in SHRI KARN SHARMA VERSUS COMMISSIONER OF CENTRAL EXCISE & S.T., MEERUT-L [2018 (4) TMI 111 - CESTAT ALLAHABAD], COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, GOA VERSUS SHRI. SWAPNIL ASNODKAR [2018 (1) TMI 266 - CESTAT MUMBAI] is squarely applicable to the present case also. A set of services alleged to be falling under BSS by the Revenue is also held to be covered under another set of services namely Brand Promotion Services. Admittedly, the brand promotion service was introduced w.e.f. 01.07.2010 and as observed as having been argued by the Ld. DR in paragraph-6 above of this order, cannot be made use to fit into another service ie., the categorization of the same set of activities under two different services for two different periods is not permissible. Having taxed under BSS, the Revenue should not have changed its stands for a different period when there is no change in the nature of services alleged. The decision of the Hon’ble Kolkata High Court in the case of SOURAV GANGULY VERSUS UNION OF INDIA & OTHERS [2016 (7) TMI 237 - CALCUTTA HIGH COURT] is required to be followed, there exists employer-employee relationship, the players are paid remuneration and therefore, there is no service which is liable to be brought under the tax net for both the periods under the alleged heads - there cannot be liability under BPS and consequently, the assessee’s appeals are required to be allowed and the same are allowed. Working of the taxable value where the Revenue sought to include, for the year 2011-12, the prize money - HELD THAT:- It is not disputed by the Revenue that the prize money was not given by its franchisee, it’s rather the money received from BCCI directly for winning and not towards any services - the prize money could never be included in the taxable value - But, however, since there was no service at all, the above question is just academic. Appeal dismissed - decided against Revenue.
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