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2023 (1) TMI 938 - AT - Service TaxLevy of service tax - Business Support Service or not - Cirket Player - service tax levied under this head on the ground that Appellant wear the team clothing which bears the brands/ marks of various sponsors and they are also required to participate in promotional /public events of the franchisee thus they are providing Business Support Service - existence of employer – employee relationship or not - HELD THAT:- Though in the impugned order the appellants were made liable to pay service tax under the business support service but as, no specific entry as mention in the definition of “Business Support service” has been shown to be applicable to levy service tax. It is not appearing from the finding of the impugned order as how the activity of appellant covered under the above category of services. The apparel that they had to wear was team clothing, which bears the brand/marks of various sponsors. The Appellants was not providing any service as an independent individual. It cannot be said that the appellants was rendering any services which could be classified as business support services. Appellants are not promoting any particular brand or product or service and also not taking part in any business activity of promoting the sale of any product or service of any entity. The entry for “Business Support Service” envisages taxing activities which are needed for doing business activities almost in the nature of outsourcing of activities connected with business. The definition of “Business Support Service” does not specifically cover the activity done by Appellant. Further, on perusal of the agreement title “Indian Premiere League Playing Contract” it clearly emerges that it is the appellant who is recognized as player first. Clause -2 of this agreement even makes it all the more clear that the franchisee is engaging players as professional cricketer who shall be employed by the franchisee. From this, it is abundantly clear that a person who has earned the reputation and recognition as a player is employed by the franchisee and it is not the other way round - the employer – employee relationship cannot be disputed and therefore the decisions relied upon by the Learned Counsel are squarely applicable to the present case. Reliance can be placed in the case of CCE & ST, CHENNAI VERSUS L. BALAJI, S. BADRINATH, DINESH KARTHICK, MURALI VIJAY, VIDYUT SIVARAMAKRISHNAN, ANIRUDA SRIKKANTH, SURESH KUMAR, YO MAHESH, HEMANG BADANI, ASHWIN R,C. GANAPATHY, ARUN KARTHIK KB, KAUSHIK GANDHI, PALANI AMARNATH C, ABHINAV MUKUND (VICE-VERSA) [2019 (5) TMI 377 - CESTAT CHENNAI] where it was held that 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. Reliance also placed in the case of C.E,C & CGT-DELHI VERSUS PIYUSH CHAWLA [2018 (7) TMI 1009 - CESTAT NEW DELHI] where it was held that It is settled legal position that services provided by an employee, for the activities undertaken by the employer, for and under the instruction of the employer, cannot be termed as service provided by the employee. Reliance also placed in the case of SHRI KARN SHARMA VERSUS COMMISSIONER OF CENTRAL EXCISE & S.T., MEERUT-L [2018 (4) TMI 111 - CESTAT ALLAHABAD] where it was held that Hon’ble Calcutta High Court in the case of Shri Sourav Ganguly Vs Union of India and Others [2016 (7) TMI 237 - CALCUTTA HIGH COURT] has dealt with an identical issue and held that It was not the intention of the legislature that any and every kind of activity which can loosely be termed as ‘Business’ would attract service tax. It being a taxing provision, the same must be construed strictly and any benefit of doubt in the matter of interpretation of the provision must go in favor of the assessee. Thus, the Appellants are not liable to service tax under the Business Support Service - the demands of service tax are not sustainable against the appellants - appeal allowed.
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