TMI Blog2016 (1) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... ime as contended by the appellant. What is sold is the right to advertise and promote the product of the CCIPL. Similarly right to use the Inox Logo, as contended by the Ld. Advocate is not the right that is under consideration before us. What is under consideration is the right to promote the product of CCIPL for which CCIPL pays fees to the appellant. It is beyond doubt, therefore, that that the services provided are covered under BAS. Appellant provided BAS to its client CCIPL on which tax is payable. However, we agree with the appellant that the service tax on import of 'Architect Services" attracts levy of service tax only from 18/4/2006 onward. We need not dwell on this issue that service tax on import of services is payable by the recipient of the service under Section 66 (A) only w.e.f. 1/5/2006 when the Section 66(A) was brought into effect. This is the settled legal position. Decided partly in favor of assessee. - Appeal No. ST/258/11 - Final Order No. A/85095/2016-WZB/STB - Dated:- 4-1-2016 - P S Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Shri Dinesh Kumar Agarwal, Adv For the Respondent : Shri B Kumar Iyer, Superintendent (AR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,61,54,150 (49,19,625) SCN DATE Period Service Category Turnover Total demand 6.10.2008 Upto 31.12.2002 Architect Fee 80,50,951 5,68,103 After 1.1.2005 Architect Fee 48,92,040 4,98,988 Total Architect Fees 1,29,42,991 10,67,091 3. Ld. Advocate submits that Service Tax on import of services (Architect services) could be levied only from 18.4.2006 with the introduction of Section 66(A) of the Finance Act, 1994 as held by the Hon'ble High Court of Bombay in the case of Indian National Shipowners Association vs. Union of India [2009(13) STR 235 (Bom)]. 3.1 Next contention is that each Multiplex theatre is duly registered within the jurisdiction of respective Service tax authorities. Out of 19 premises, only two fall within the jurisdiction of the Adjudicating authority. Therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable as listed in Schedule 5 for consumption by INOX through the Outlets in the premises, either as RGB, PET, Can or as Fountain Beverages, at each of the Premises subject to the terms and conditions hereinafter provided. 2.2 INOX hereby grants to CCIPL the following Promotional and Advertising Rights in respect of Beverages in the Premises. 2.2.1 INOX authorizes CCIPL to have reasonably prominent signage ( the Signages ) as may be desired by CCIPL and agreed to by INOX, for promoting the Beverages at the Outlets and such other places within the Premises as may be mutually agreed. Ordinarily such area/places for signage would include without limitation - Main Foyer - Concession Stands - Other Foods Beverage selling points 2.2.2 INOX agrees that CCIPL may place such other material for promotion of the beverages within the Outlets and within the Premises as may from time to time mutually agreed. 3.1 In respect of location, INOX shall intimate CCIPL well in advance of the expected date of opening, for commercial operations, of the Multiplex Cinema Theater therein, and provide to CCIPL the plans showing the location and the size of the Outlets within the premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that the aforesaid exclusively granted by INOX to CCIPL shall apply only in respect of, but without limitation, to the premises of the Operational Locations. 4.3.9 INOX shall ensure that Singapore and panels promoting Products shall be illuminated at all times, where applicable, during which the outlet is operational and shall bear the cost of electricity consumed in respect of such lighting of the signages. 5. ADVERTISING, MARKETING AND SALES PROMOTION: 5.1 It is hereby agreed by and between the Parties that the expenses for all the business and promotional campaigns shall be met by CCIPL from the annual budget earmarked for such purpose, and shall be incurred by CCIPL after the same is mutually agreed to in writing. 7. PAYMENTS In consideration of the premises herein mentioned CCIPL agrees:- 7.1 to pay INOX a Signing Fee of ₹ 35 lacs in respect of each of the Locations, such payment to be made within a period of 30 days on and from the commencement of the operations of the Multiplex Cinema Theatre. 7.2 to pay an Annual Pouring fees in respect of each of the Locations to be paid by CCIPL to INOX, every year, within 30 days of the commencement of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no jurisdiction to adjudicate the case in respect of services received beyond jurisdiction. The finding in the impugned Order does not address this issue appropriately. The only finding is that it was never brought to the notice of the investigating officer that appellant were registered with the Service Tax department at each location in India. The Commissioner observed that since the centralized accounting system is a matter is within the appellant's control, they cannot be permitted to claim that they made a wrong presentation and therefore the show cause notice should fail on jurisdiction. In our view, the fact remains that, as admitted in the Order by the Commissioner, it was disclosed by the appellant's authorized representative Mr. Rajesh Parte vide his statement dated 27.4.07 that revenues coming from different locations were accounted as 'Pouring Fees' in the balance sheet. The Commissioner held that appellant did not inform that discharge of service tax liability was left to each individual location and that they were not maintaining centralized accounting. In our view, the issue is not of centralized accounting. It is an obvious fact a company having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner. On the issue of extra territorial jurisdiction the Apex Court in the case of Kiran Singh (Supra) held that: It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that is invalidity could be set upon whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. Reliance is also placed on the Apex Court judgment in the case of Commissioner of Customs Vs. Sayed Ali [2011 (265) ELT 17 (SC)] . The Hon'ble Court was considering the definition of proper officer under Section 2(34) and the proper officer competent to issue a show cause notice under Section 28 of the Customs Act. The Court held that: 14. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a customs officer who has been assigned the specific functions of assessment and re-asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zb) read with definition of Business Auxiliary Service under Section 65 (19) (i), by promoting sale of goods provided by the client . 9.1 We do not agree with the Ld. Advocate that the activity performed by them falls under different services such as non compete clause, sale of space or time, brand promotion. Reading of the entire agreement holistically leads to only one conclusion, that the appellant were providing services for marketing of goods provided by the client. It is not necessary that to promote the product, the goods have to be owned by the client. Therefore the contention that the appellant is promoting or marketing its own goods because it has purchased the beverages from CCIPL, does not hold good. The words used in the definition are goods produced or provided by or belonging to the client In the present case the appellant were marketing the goods provided by CCIPL. The consideration received in the form of 'pouring fees' and 'signing fees' is purely a commercial consideration received for advertising and promoting the beverages of CCIPL. There is no separate payment under non compete clause 4.3.6. Further under clause 2.2, the appellant grants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Indian National Ship Owners Association (supra). 11. On the issue of invocation of extended time period for part of the demand for period prior to one year before the issuance of show cause notice dated 6/10/2008, we find that the various locations of the appellant were duly registered under service tax. In such case, responsibility is cast on the appellant to furnish details to the authorities at prescribed frequency under Rule 7 of the Service Tax Rules and declare the services rendered, assess the tax due and make the payment of service tax by the due date. It is only in pursuance of investigation carried out by DGCEI that the non payment of service tax came to light. In these circumstances the demand under the extended time period under Section 73 is sustainable. 12. Equivalent penalty in terms of Section 78 is also payable on account of the fact that there was suppression of facts which warrants penalty under Section 78. 13. In view of the above, we pass following order: (a) Demand of service tax on 'pouring fees' and 'signing fees' is upheld to the extent of demand on services rendered within the jurisdiction of Service Tax, Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
