TMI Blog2015 (11) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... 94 was satisfied in terms of the franchise agreement entered into by the appellant. - franchisee was obliged not to open any school with any name in the existing premises/building operational area of the school. In other words, the franchisee was free to open any school with any name in a "different premises/building operational area of the school". Thus in our view condition No. iv of the definition of franchise quoted above is not satisfied in the present case and consequently the agreement does not fall in the category of franchise agreement as defined under Section 65(47) ibid prior to 16.6.2005 - no service tax is leviable under franchise service prior to 16.6.2005 - Impugned order is set aside - Decided in favour of assessee. - ST/St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich- (i) the franchisee is granted representational right to sell or manufacture goods or to provide service or undertake any process identified with franchisor, whether or not a trade mark, service mark, trade name or logo or any such symbol, as the case may be, is involved; (ii) the franchisor provides concepts of business operation to franchisee, including know how, method of operation, managerial expertise, marketing 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 go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. We find that the condition in this regard in the agreement is as under: In case this franchise agreement is cancelled, the name of the school and children on rolls will be the exclusive rights of the first party and the school will be taken over by the franchisor. The franchisee will not open any school with any name in the existing premises/building operational area of the school for a period of two years after the cancellation of this agreement. A careful perusal of the above quoted condition reveals that franchisee was obliged not to open any school with any name in the existing premises/building operational area of the school. In other words, the franchisee was free to open any school with any name in a differ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
