TMI Blog2009 (11) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... 19,876/- respectively along with applicable interest. He also imposed penalty under the provisions of Sections 76, 77 and 78 of the Finance Act, 1994 on the appellant. 2. Show cause notice dated 14th December, 2007 was issued to the appellant for the period July, 2003 to September, 2007 on the ground that amount of license fee collected by the appellant from the dealers is liable for service tax under the taxable category of franchise services . The appellant are collecting license fee under the clauses of agreement entered with the dealers. As per the agreement, the dealers are required to follow the following conditions which make them liable under the category of franchise services :- (i) dealers are not allowed to sell the similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate, Mr. R.B. Gaikwad and Mr. Sachin Chitnis, Asstt. Advocates appeared for the appellant. Nobody was present to represent the Departmental side. It was argued that the license fee referred to in the SCN is defined in para 2 of the agreement which says that it is for use of outfit for the sole and exclusive purpose of storing, selling and handling the products purchased by the dealers from the Appellant. As per the appellant s say, it is a kind of rental for the infrastructure provided to the retailers. This very activity has become service taxable w.e.f. 16-5-08 under the category of Supply of Tangible Goods Services . The Advocate submitted an Order passed by Commissioner (Appeals)-II, Jaipur dropping the demand on merit in exactly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in appellant s favour and pre-deposited Rs. 5 Lakhs as directed in case of Appeal No. Nsk/05/2009, I waive the condition of pre-deposit in appeal No. 47/2009, and instead, intend to decide the appeal itself. Since issue involved in both the appeals is same, I proceed to decide both the appeals by way of a single order. 6. I have carefully gone through the records of the case and the submissions, both written and oral, made by the appellant. OIOs dated 21-11-2008 and 30-1-2009 were reportedly received by the appellant on 1-12-2008 and 19-2-2009 respectively and appeals against the same were filed in this office on 9-1-2009 and 18-3-2009 respectively. The appeals are thus in time under Section 85(3) of the Finance Act, 1994. 7. The is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the appellant. Clause 05 of the said agreement stipulates that the dealers shall pay to the appellant a monthly License fee towards use of said premises and outfit, free of all deductions. The status of the dealer in the light of agreement is like retailer or dealer appointed for the sole purpose of sale and distribution. 10. It is very specifically written in the clause 5 of the agreement that for the use of outfit, the Dealer shall pay a monthly License fee . Said stipulation in the agreement means that amount collected by the appellant under the head license fee is a rent towards use of apparatus and equipments termed as outfit. Adjudicating Authority has opined that said license fee is for tangible goods like equipments and appara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fee, which is for a different transaction and consideration than the sale of MS and HSD cannot form part of the assessable value of MS and HSD. The issue also settled by the decisions relied on by the appellants. The aforesaid judgment has been upheld by Hon ble Supreme Court reported at Commissioner v. BPCL - 2004 (173) E.L.T. A193 by observing under :- Delay condoned. On 19th July, 2004 this Court had granted two weeks time to the Appellants to ascertain whether clearances of the High Powered Committee had been obtained for these Appeals. Even today Appellant could not inform us whether any clearance has been obtained from the High Powered Committee. In any event, we find that identical Appeals have been dismissed on 13th July, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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