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2016 (6) TMI 1107 - CESTAT NEW DELHI

2016 (6) TMI 1107 - CESTAT NEW DELHI - TMI - Waiver of pre-deposit - Franchise Service - appellant gave right to use its name for running pre-primary and preparatory schools - scope of the definition of “Franchise” given in Section 65(47) of the Finance Act, 1994 during the relevant period - it was contended that as per one of the condition during the relevant period, franchisee was under an obligation not to engage in selling or providing similar goods or services or process identified with any .....

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ation No.55237 of 2014 in Service Tax Appeal No.54594 of 2014 - Stay Order No. 50700/2016 - Dated:- 6-6-2016 - Mr. S.K. Mohanty, Judicial Member and Mr. R.K. Singh, Technical Member Present Shri Varun Gaba, Advocate for the appellant Present Shri Amresh Jain, A.R for the Respondent/Revenue ORDER Stay application along with appeal has been filed against Order-in-Appeal dated 24.6.2014, in terms of which service tax demand of 45,32,252/- pertaining to the period 1.4.2004 to 15.6.2005 was confirmed .....

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he ground that during the relevant period the definition of Franchise given in Section 65(47) of the Finance Act, 1994 contained a provision in terms of which franchisee was under an obligation not to engage in selling or providing similar goods or services or process identified with any other person and that in that case that condition was not satisfied and therefore, service rendered was not classifiable as franchise service. He stated that agreement under which service was rendered in that ca .....

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nd 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 of service tax leviable with effect from on 16.6.2005. As is evident from the forgoing the only issue involved in this case is whether condition No. iv of the definition of franchise given in Section 6 .....

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eriod 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 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 .....

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