TMI Blog2023 (6) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... TOMS, CENTRAL EXCISE SERVICE TAX, GOA- (VICE-VERSA) [ 2016 (11) TMI 520 - CESTAT MUMBAI] has set aside the demand holding that in case of joint venture contract, there is neither an intention to render a service to the other partner(s) nor is there any fixed consideration quid pro quo for any particular service of a partner. It has further been held that a contractor-contractee or the principal-client relationship, which is the essential element of any taxable service, is absent in the case of the partners or co-venturers in a joint venture agreement - In the present case, since the demand of Rs.16,71,71,797/- in respect of Central Rights Income arising out of the franchise agreement cannot be considered as provision of any service between the members to the franchise agreement, such demand cannot be confirmed on the assessee-appellants. Whether 10% of the payments made by Franchisee Company to the foreign players is taxable under the reverse charge mechanism (RCM) as BSS on the basis that the players carry out promotional activities (incl. wearing uniforms with logos, etc.)? - HELD THAT:- The said issue has already been dealt with by the Co-ordinate Bench of this Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RCM? - HELD THAT:- The identical issue was considered by the Co-ordinate Bench of this Tribunal, in the case of KPH DREAM CRICKET PVT. LTD. VERSUS CCE ST, CHANDIGARH-I (VICE-VERSA) [ 2019 (5) TMI 1171 - CESTAT CHANDIGARH] . Upon consideration of such issue, the Tribunal had held that the main object of the appellant-assessee is to promote game of cricket in India through IPL tournaments. For obtaining service of organizing the said tournaments cannot be treated a service is in nature of Business Support Service. Therefore, no service tax is leviable under the category of Business Support Service as discussed hence the demand of service tax is not sustainable - As the present case is identical in the factual matrix to the above case already decided by the Tribunal, there exists no ground to deviate from the above stand - the confirmation of demand Rs.11,24,636/- towards service tax liability on marketing and Public Relations activities conducted outside India paid to foreign vendors on RCM basis is not sustainable. Whether the appellants-assessee is required to reverse common CENVAT Credit availed for providing taxable and exempt output service? - HELD THAT:- The issue has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether 100% of payments by the company to foreign coaches and support staff is taxable under RCM as BSS on the basis that they carry out promotional activities? - HELD THAT:- The issue has already been addressed in detail in the impugned order by the learned Principal Commissioner concluding that the activity of coaches and also support staff clearly stands out distinctly different as coaching service provided in relation to sports and is not covered Business Support Service; further he concluded there exists a specific category for levying such category of services, i.e., commercial training or coaching centre . However, as the coaching in the filed of sports has been specifically excluded from the applicability of service tax vide the definition of commercial training or coaching centre under section 65(27) of the Finance Act, 1994, and as the service of coaching is not provided by an centre but an individual coach and support staff, he concluded that the service tax is not chargeable on such activity - there is no ground for interfering with the order of the learned Principal Commissioner. Thus the demand of service tax on this issue is not sustainable and appeal made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 16,71,71,797 - 16,71,71,797 Total 16,71,71,797 - 16,71,71,797 - 16,71,71,797 Service Tax under Reverse Charge Mechanism B ST applicability on fees paid to foreign players (10% of the fee) 3,67,51,303 3,19,96,221 47,55,082 11,99,946 35,55,136 C ST applicability on the fees paid to players agents 20,13,565 - 20,13,565 - 20,13,565 D ST on Management Consultancy, Design Advertising Services 38,31,865 - 38,31,865 11,51,348 26,80,517 E ST on fees paid to foreign coaches and support staff 1,75,62,397 1,75,62,397 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the players to their respective agents cannot be subjected to levy of service tax in the hands of the appellant inasmuch as there is no relationship of service provider and receiver adjudged in such type of transaction. To support such stands, the learned Advocate has relied upon the decision of this Tribunal in the case of KPH Dream Cricket Pvt. Ltd. (supra). 2.1 With regard to confirmation of service tax demand of Management Consultancy, Design Advertisement services, the learned Advocate stated that the appellants-assessee is contesting the service tax demand for the period 2009-2010 on the ground that during such disputed period, the IPL was played in South Africa and not in India and since the entire services were provided outside the territorial territory, service tax demand cannot be fastened on the them. He has relied upon the decision of this Tribunal in the case of Genom Biotech Pvt. Ltd. Vs. Commissioner of Central Excise Service Tax. Nashik - 2016 (42) STR 918 (Tri-Mumbai). 2.2 In response to the impugned order confirming the service tax demands on the fees paid to foreign coaches and supporting staff, learned Advocate submitted that the services are in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-assessee s share in the Central Rights Income is consideration for the alleged services rendered to BCCI-IPL in organizing the IPL tournament, and taxable as Business Support Services ( BSS )? (ii) Whether 10% of the payments made by Franchisee Company to the foreign players is taxable under the reverse charge mechanism ( RCM ) as BSS on the basis that the players carry out promotional activities (incl. wearing uniforms with logos, etc.)? (iii) Whether payments made to foreign service provider for management consultancy services are taxable under RCM under taxing entry for Management or Business Consultant s Service? (iv) Whether costs incurred in marketing and PR activities outside India is taxable under the taxable service for BSS, on RCM? (v) Whether the appellants-assessee is required to reverse common CENVAT Credit availed for providing taxable and exempt output service? (vi) Whether 90% of payments made by Franchisee company to the foreign players is taxable under RCM as BSS on the basis that they carry out promotional activities (incl. wearing uniforms with logos, etc.)? (vii) Whether 100% of payments by the company to foreign coaches and support staff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es being payable to the player, when he does not happen to play even a single match, thereby attributing this part of 10% as consideration for promotional activities confirmed the demand of service tax for an amount of Rs.47,55,082/- relying on the instructions of CBIC dated 26.07.2010, while dropping the demand on the balance 90% of fees attributing the same to sports activity of playing cricket. We find that the said issue has already been dealt with by the Co-ordinate Bench of this Tribunal, in the case of Sourav Ganguly Vs. Commissioner of Service Tax, Kolkata (Now Commissioner of Central Goods Service Tax Central Excise, Kolkata South), 2020 (12) TMI 534 CESTAT Kolkata, wherein it was held that the view taken by the commissioner is not correct as the players had received the fees for the purpose of playing cricket only and even otherwise, it is a settled principle of law that if no machinery provision exists to exclude non-taxable service (playing cricket) from a composite contract, the same is not taxable since law must provide a measure or value of the rate to be applied and any vagueness in the legislative scheme makes the levy fatal. Thus, the Tribunal held in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department that Section 67 is a declaratory provision, nor could it be argued so, as we find that this is a substantive change brought about with the amendment to Section 67 and, therefore, has to be prospective in nature. In the present case before us, the disputed period for which demands were raised relate to 2008-2009 and 2011-2012, much prior to the amendment to Section 67 introduced w.e.f. 14.05.2015. Hence, the confirmation of demand for Rs.38,31,865/- in respect of reimbursable expenses to foreign service provider on RCM basis cannot be considered as there exists no legal provision for charging to service tax on such reimbursement charges, we are of the view that such demand cannot be confirmed on the assessee-appellants. 5.4. As regards fourth issue, whether costs incurred in marketing and Public Relations activities conducted outside India would be subjected to levy of service tax, we find that the identical issue was considered by the Co-ordinate Bench of this Tribunal, in the case of KPH Dream Cricket Pvt. Ltd. Vs. CCE ST, Chandigarh-I (viceversa), 2019 (5) TMI 1171 CESTAT Chandigarh. Upon consideration of such issue, the Tribunal had held that the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, in terms of Rule 6 (3) (i) of Cenvat Credit Rules, 2004, they are required to reverse the amount. 34. We find that the amount has been received by the appellant as the sale of ticket for cricket tournament which is not service, therefore, when it is not the service, it cannot be termed as service, no service tax is required to be reversed. Further, for the period 2010-12, the appellantassessee has also reversed the said amount, therefore, no demand is sustainable on that account. 35. In view of the above discussion, we hold that the demands of service tax are not sustainable against the appellant- assessee. Therefore, the demands confirmed by way of impugned order are set aside. Thus, the Tribunal held that the demand of service tax is not sustainable against the appellants. We also find that the explanation 3 to Rule 6(1) of the Cenvat Credit Rules, 2004 was amended vide notification No. 13/2016-C.E. (NT) dated 01.03.2016, wherein the exempted service was expanded to include an activity which is not a service as defined under Section 65B (44) of the Finance Act, 1994 w.e.f. 01.04.2016, for which reversal of cenvat credit is required. Hence, prior to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specific category for levying such category of services, i.e., commercial training or coaching centre . However, as the coaching in the filed of sports has been specifically excluded from the applicability of service tax vide the definition of commercial training or coaching centre under section 65(27) of the Finance Act, 1994, and as the service of coaching is not provided by an centre but an individual coach and support staff, he concluded that the service tax is not chargeable on such activity. Further, in this case the fees pertains to coaching the cricket players playing for the team and the amount paid is attributable to the coaching service or support service provided by them and thus service tax cannot be demanded on these fees and services as in the case of cricket players, as sports coaching and support staff service are exempt. In view of the clear findings recorded in the impugned order, we find that there is no ground for interfering with the order of the learned Principal Commissioner. Thus we find that the demand of service tax on this issue is not sustainable and appeal made by the Revenue does not survive. 6. On the basis of above discussions and findings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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