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2015 (10) TMI 1053 - CESTAT NEW DELHI

2015 (10) TMI 1053 - CESTAT NEW DELHI - 2016 (41) S.T.R. 458 (Tri. - Del.) - Liability of Service Tax Franchisee Service or not - activity of running a pre-preparatory/preparatory school. Appellant contends that definition of franchise under Section 65(47) of the Finance Act, 1994 is not satisfied; Appellant was not under an obligation not to engage in selling or providing similar goods or services or process, identified with any other person thus not liable to pay service tax Revenue cont .....

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followed Appeal allowed in favour of the Appellant. - Appeal No. ST/Stay/59200/2013 & ST/58603/2013-CU(DB) - F. Order No. 53058/2015 - Dated:- 22-9-2015 - Mr. G. Raghuram, President And Mr. R.K. Singh, Member (Technical) Shri Varun Gaba, Advocate : for the Petitioner Shri Amresh Jain, D.R. : For the Respondent ORDER Per R.K. Singh: Stay application along with appeal has been filed against order-in-appeal dated 20.8.2013 which upheld the order in original dated 31.3.2011 in terms of which ser .....

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chisee service. 2. The appellant has contended that: (i) it had entered into a franchise agreement with the franchisee in terms of which it gave right to use the name Shemrock to the franchisee for running a pre-preparatory/preparatory school. (ii) After the amendment to the definition of franchisee with effect from 16.6.2005, it has paid service tax due along with interest which has also been appropriated. (iii) It contended that prior to 16.6.2005 the definition of franchise under Section 65(4 .....

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techniques or training and standards of quality control except passing on the ownership of all know how to franchisee; (iii) the franchisee is required to pay to the franchisor, directly or indirectly, a fee; and (iv) the franchisee is under an obligation not to engage in selling or providing similar goods or services or process, identified with any other person. It pleaded that its franchise agreement satisfied the condition (i), (ii) and (iii) above, the condition (iv) was not satisfied. Inas .....

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le even prior to 16.6.2005. 4. We have considered the contentions of both sides. It is seen that there is no dispute about leviability of service tax under franchise service with effect from 16.6.2005 and that amount has already been paid along with interest and duly appropriated. Indeed we find that while imposing penalty under Section 78 ibid only the amount of service tax leviable for the period prior to 16.6.2005 has been taken into account and no penalty was levied in relation to the amount .....

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