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2015 (7) TMI 392 - BOMBAY HIGH COURT

2015 (7) TMI 392 - BOMBAY HIGH COURT - 2015 (39) S.T.R. 961 (Bom.) - Validity of Circular - whether the circular would govern the controversy or whether the controversy must be dealt with strictly in terms of the statutory provisions and the circular cannot override the same - clarification on levy of service tax on distributors/sub-distributors of films & exhibitors of movie - Circular No.148/17/2011 Service Tax, dated 13th December, 2011 - Held that:- merely making a reference to some Circular .....

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not dismiss it on the ground that it is barred by limitation. The Tribunal shall permit the Petitioner to raise all contentions including that the issue must be examined in the light of the arrangements, prevalent practices and customs peculiar to the film industry. Such arrangements and which are in vogue for decades together do not create any relationship and which is assumed to be created by the Revenue. The Circular therefore will have no application and would not apply. Equally, an opportu .....

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on No. 1180 of 2015 - Dated:- 6-7-2015 - S. C. Dharmadhikari And G. S. Kulkarni,JJ. For the Appellant : Mr. Rafique Dada Senior Adv with Mr. Sushant Murthy For the Respondent : Mr. Pradeep S Jetly with Mr. J B Bishra ORDER P. C. By this Writ Petition under Article 226 of the Constitution of India, the Petitioner claims a declaration that a Circular bearing No.148/17/2011 Service Tax, dated 13th December, 2011, issued by Respondent No. 2 and an order-in-original dated 12th February, 2015 passed b .....

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rd, our attention was invited to sub section (1) of section 86 of the Finance Act, 1994 as amended from time to time. It was submitted that whether the circular would govern the controversy or whether the controversy must be dealt with strictly in terms of the statutory provisions and the circular cannot override the same are contentions which can be raised conveniently before the Appellate Forum. The Appellate Forum is not thus prevented from considering all challenges to the impugned order and .....

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e, Department of Revenue, Central Board of Excise and Customs, New Delhi proceeds to create a relationship and styled as Association of Persons, though non existent. This is a case where a business practice in the film industry has been recognised and throughout. If the business practice was that if the producer of the film, who owns the intellectual property rights of the film, temporarily transfers the rights to a person, who directly or indirectly enters into an agreement with the exhibitor, .....

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ture and which is to be found in the Hon'ble Supreme Court's decision in the case of New Horizons Limited vs. Union of India reported in 1995 1 SCC 478 and in the case of Gammon India Limited vs. Commissioner of Customs, Mumbai reported in 2011 (269) ELT 289 (SC) does not enable the authority to issue the Circular and thereafter bring the arrangement, which is ordinarily on a principal to principal basis, to tax as an Association of Persons or such other known legal entity. In the circum .....

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ss of running, conducting, operating and managing multiplex theaters. They are exhibiting cinematographic films in the theaters taken on rental basis from others. For exhibiting the cinematographic films, the noticee has adopted revenue sharing arrangement with distributors, sub distributors or others. The Department/Revenue alleges that the the Petitioner, who was engaged in the activity of exhibiting cinematographic films either in the theatre owned by it or in the theatre taken on rent basis, .....

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Tax to the tune of ₹ 40,41,21,978/-, interest and penalty thereon. The Noticee, namely, the Petitioner filed a detailed reply and denied and refuted the allegations. Thereafter, at the oral hearing before the Commissioner, extensive arguments were canvassed and which touch some disputed facts and merits. The Commissioner's findings may refer to a Circular issued by the Board, but prima facie, it is not entirely based on the same. It is based on some understanding of the legal provision .....

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