2008 (8) TMI 252 - AT - Service Tax

Change in definition of Franchise u/s 65(47) of Finance Act w.e.f. 16-6-05 applicant submit that after deletion of sub-clauses (ii), (iii) and (iv) in amendment, they comes out purview of Franchise service - true test to determine whether the agreement amount to franchise is whether the agreement is for grant of representational right to provide service or undertake any process identified with the franchisor - prima facie, substance in the submissions of revenue that sub-clauses were incidental to the grant of representational right to provide the service stay granted partly

Summary

Issues:
Waiver of pre-deposit and stay in a service tax case based on the definition of 'franchise' under Section 65(47) of the Finance Act.

Analysis:
The case involved an appeal concerning the waiver of pre-deposit and stay in a service tax matter. The appellant was required to pre-deposit a significant amount as service tax along with penalties as per the impugned order. The issue revolved around the definition of 'franchise' under Section 65(47) of the Finance Act, which had undergone changes. The appellant argued that due to the deletion of certain sub-clauses in the definition, their service should not be considered a franchise service anymore.

Upon hearing both parties, the Tribunal analyzed the impact of the deletion of sub-clauses (ii), (iii), and (iv) on the definition of 'franchise.' The Tribunal noted that the deletion had widened the scope of the definition. The Tribunal emphasized that the key test to determine if an agreement constituted a franchise was whether it granted a representational right to provide services associated with the franchisor. The Tribunal found merit in the Revenue's argument that the deleted sub-clauses were incidental to the grant of representational rights.

Consequently, the Tribunal directed the appellant to deposit a specific sum within a stipulated time frame. Upon this deposit, the pre-deposit of the remaining tax and penalties would be waived, and the recovery thereof would be stayed. The Tribunal's decision was based on the interpretation of the changed legal position regarding the definition of 'franchise' under the Finance Act.

In conclusion, the Tribunal's judgment highlighted the importance of the revised definition of 'franchise' and its implications on the appellant's liability for service tax. The decision provided clarity on the application of the definition in the context of the appellant's case and emphasized the need for compliance with the directed deposit to avail the benefit of waiver and stay on recovery.