TMI Blog2017 (9) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... e provided by the appellant to Indian Hotels - As regard the service tax liability on the appellant, even if they are liable to pay the said service tax, they are legally entitled for the Cenvat credit on the entire amount which will reduce the liability of service tax on the appellant. Accordingly, the appellants net payment of service tax to the Government exchequer will reduce to the extent of service tax payable in respect of Franchise service, therefore the entire issue is revenue neutral - this is a clear case of revenue neutrality. The demand of service tax in the present case amounts to double taxation on the part of the same service charges - appeal allowed - decided in favor of appellant. - ST/701/12 - A/89361/17/STB - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the appellants itself, and shall be utilized for the advertisement, promotion and marketing in order to maximize general public recognition, acceptance and use of the said brand names. During the course of the audit of the service tax it was observed that the appellant had made payments in foreign currency to PG under the said agreement which was indicated in the audited balance sheet and service tax was not paid on the same. It was alleged that the appellants have received Franchisee Service from PG and service tax on the same was payable under reverse charge as import of services in terms of Section 66A of the Finance Act, 1994. Accordingly show cause notice dt. 21.10.2010 was issued demanding service tax amounting to ₹ 1,29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stood reduced to this extent, accordingly the entire case is revenue neutral. In support he placed reliance on the following judgments: (i) Jet Airways (I) Ltd. Vs. Commissioner of Service Tax, Mumbai - 2016 (44) STR 465 (Tri.-Mumbai) (ii) United Phosphorous Ltd. Vs. Commissioner of Service Tax, Mumbai - 2016-TIOL-1572-CESTAT-MUM (iii) Rochem Separation Systems (India) P. Ltd. Vs. Commr. of S.T., Mumbai-I - 2015 (39) STR 112 (Tri.-Mumbai) (iv) Commissioner of C.Ex., Pune Vs. Coca-Cola India Pvt. Ltd. - 2007 (213) E.L.T. 490 (S.C.) (v) Commr. of C.Ex., Cus., Vadodara-II Vs. Indeos ABS Limited - 2010 (254) E.L.T. 628 (Guj.) (vi) Mafatlal Industries Ltd. Vs. Commissioner of C. Ex., Daman - 2009 (241) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t expenses the service tax cannot be demanded for one more reason that the said amount was not received separately by the appellant and the service tax at the relevant time was chargeable only on the actual receipt of the service charges. For this reason also the service tax on the advertisement fees cannot be demanded. He placed reliance on the following judgments: (i) Excel Consultants Vs. Commissioner of Central Excise, Bhopal - 2010 (19) STR 665 (Tri.-Del.) (ii) La Freightlift (P) Ltd. Vs. Commissioner of Service tax, Cehnnai - 2009 (14) STR 513 (Tri.-Chennai) (iii) Turret Industrial Security Pvt. Ltd. Vs. Commr. of C. Ex., Cus., JSR - 2008 (9) STR 564 (Tri.-Kolkata) He further submits that the demand is time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant as submitted above. Penalties under Section 76, 78 cannot be imposed. He placed reliance on the following judgments: (i) Commissioner of Central Excise Pondicherry Vs. Ponds Exports Ltd. - 2016-TIOL-2221-CESTAT-MAD (ii) Landis + GYR Ltd. Vs. Commissioner of Central Excise, Kolkata-V - 2013 (290) E.L.T. 447 (Tri.-Kolkata) (iii) Commissioner of Service Tax, Bangalore Vs. Motor World - 2012 (27) STR 225 (Kar.) As regard taxability of the service in the facts of the present case as proposed by the department under the Franchise service, he submits that the service received by the appellant M/s. Park Global Holdings Inc,. PG does not fall under the definition of Franchise services in terms of Section 65(47). H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice recipient i.e. Indian Hotels therefore the service received from PG, USA got subsumed in the service provided by the appellant to Indian Hotels. There is no dispute that the appellants have discharged service tax on the overall services provided to Indian Hotels which is more than ₹ 7crores. As regard the service tax liability on the appellant, even if they are liable to pay the said service tax, they are legally entitled for the Cenvat credit on the entire amount which will reduce the liability of service tax on the appellant. Accordingly, the appellants net payment of service tax to the Government exchequer will reduce to the extent of service tax payable in respect of Franchise service, therefore the entire issue is revenue n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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