TMI Blog2023 (3) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... te of contract on payment of service value - it is settled that in respect of Franchise Service the service tax will arise as per the date of contract and date of payment for the service and if the same is at a time when there is no levy, no service tax can be charged. Accordingly, in the present case also the service tax on franchise service is not chargeable. Levy of service tax - Business Auxiliary Service under the head of commission - HELD THAT:- The issue was not free from doubt and this Tribunal in the case of SILICON HONDA VERSUS COMMISSIONER OF C. EX. (APPEALS-II), BANGALORE [ 2007 (4) TMI 27 - CESTAT, BANGALORE ], TRIBHUVAN MOTORS LTD. VERSUS COMMISSIONER OF SERVICE TAX, MANGALORE [ 2009 (5) TMI 382 - CESTAT, BANGALORE ] held in favour of the assessee that mere providing the table space to the financial institutions, it is not taxable. However, the issue was subsequently referred to the larger bench and in the case of M/S PAGARIYA AUTO CENTER VERSUS CCE, AURANGABAD [ 2014 (2) TMI 98 - CESTAT NEW DELHI (LB) ], It was held that the commissioner received from the financial institution shall be liable to service tax. Extended period of limitation - supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Of Service Tax, Mumbai- 2022 (56) GSTL 312 (T) Ved Automotives Vs. Commr. Of Central Ex., Kanpur- 2016 (44) STR 140 (T) 2.1 Without prejudice, he further submits that the appellants are eligible for cum tax value for calculating the service tax which was not extended by the Adjudicating Authority. He placed reliance on the following judgments: Balaji Manpower Services Vs. Union of India- 2019 (31) GSTL 418 (P H) Bansal Cylinders Tues Ltd. Vs. Commr. Of C. Ex., Haldia- 2019 (27) GSTL 243 (T) Cairn Energy India Pvt. Ltd. Vs. Commr. Of C.Ex. Cus., Visakhapatnam- II- 2019 (27) GSTL 363 (T) 3. Shri G. Kirupanandan, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the records. We find that on the first issue whether the appellant is liable to pay the service tax on franchise service for the period post its implementation i.e 01.07.2003. The fact which is not under dispute is that the appellant have entered into a contract of franchise agreement before 01.07.2003. and the payment of such con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived prior to 1-7-2003 is not the condition for taxing. The tax will be imposed on the payment received thereafter. It is stated that the payment is already received prior to 1-7-2003. 36. In that view of the matter, the interpretation put forward by the department is required to be reversed. 37. In third appeal, regarding the second issue, in view of the fact that first issue is answered in favour of the assessee, the second issue will not arise. Therefore omission of any issue in the first notice will not come in the way of the department. 38. In that view of the matter, all the issues are required to be answered in favour of the assessee against the department. 39. The appeals stand allowed. The similar view was expressed by this tribunal at Chennai Bench in the case of Shree City pvt ltd wherein the tribunal observed as under: 7. The issue is whether the appellant is liable to pay service tax on the amount received by them prior to 1-7-2010 for leasing the vacant land. The department has relied on Notification No. 36/2010-S.T. to allege that the amount received by them are mere advances and that the said consideration has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions in Finance Bill, 2010 also indicates that the amendments are being made in the definition of renting of immovable property service inter alia levy of service tax on renting of vacant land where there is an agreement between lessor and lessee for undertaking construction of building or structure on such land for furtherance of business or commerce during the tenure of the lease. The C.B.E. C. Board Circular No. 334/2010-TRU, dated 26-2-2010 (in paragraph 3) explains the purpose of the amendments to Section 65(105)(zzzz). Accordingly, the Circular explains that amendments are being made in the definition of this taxable service to provide that renting of vacant land where there is an agreement or contract between the lessor and lessee for undertaking construction of buildings or structures on such land for furtherance of business or commerce during the tenure of the lease, shall be subjected to service tax. The statement of objects and reasons accompanying the Finance Bill, 2010 also clarify that clause 75 of the Bill seeks to amend Chapter V of the Finance Act, 1994; to modify the scope of certain taxable services including the taxable service defined and enumerated in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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