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2015 (12) TMI 341 - CESTAT NEW DELHI

2015 (12) TMI 341 - CESTAT NEW DELHI - TMI - Waiver of pre deposit - franchisee service - Invocation of extended period of limitation - Held that:- There is nothing on record to indicate whether limb 4 of the definition of franchise as it stood prior to 16.6.2005 is satisfied and therefore demands up to the period 15.6.2005 prima facie may not be sustainable. As regards the period from 16.6.2005, the ld. Advocate has made out an arguable case that Media was not granted any representational right .....

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nd therefore the appellant s contention that there was no wilful mis-statement or suppression of fact on their part and they genuinely believed that the amount was not taxable has some merit and as a consequent prima facie extended period may not be invocable. - entire demand prior to 16.6.2005 is prima facie not sustainable, the extended period may also not be invocable and issue is interpretational, we grant stay against recovery subject to pre-deposit - Partial stay granted. - ST/Stay/59578-5 .....

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and penalties in the extended period. 2. The facts of the case, briefly stated, are that the appellant had a house magazine Swagat published through Media Transasia India publication (Media, for short). The magazine is published only for the use of Indian Airlines/Air India to be kept in the aircraft for passengers. Its contents and advertisements are required to be approved by the appellant. It does not pay any amount to the publisher. However, Media pays them a monthly amount. The adjudicating .....

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od is not sustainable. (ii) The issue is totally interpretational and therefore the extended period is not invokable. (iii) Even after, 16.6.2005, the term franchisee means an agreement by which the franchisee is granted representational right to sell or manufacture goods or to provide service or undertaken 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. Media was not granted any representa .....

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ed with the appellant and its logo appears on the cover of the magazine, its contents including advertisements are approved by the appellant and the advertisement were sought in the name of the magazine which is clearly identified with the appellant and thus the definition of franchise with effect from 16.6.2005 is satisfied. 5. We have considered the contentions of both sides. There is nothing on record to indicate whether limb 4 of the definition of franchise as it stood prior to 16.6.2005 is .....

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