2018 (9) TMI 1067 - AT - Service Tax

Time Limitation - franchise services - case of appellant is that the issue being interpretational and the appellant having no intention to evade service tax, failure to make the payment, being only because of interpretational issue, the demand for the extended period cannot sustain. Held that - The definition of franchise had undergone an amendment with effect from 16.06.2005. Prior to this date, in the absence of all the four ingredients in an agreement, the transaction would not fall into the category of franchise - On perusal of the agreement of the appellant with vehicle owners, it is seen that Clause No. 5 does not make any obligation on the part of the vehicle owner not to cater to other customers. Thus, the driver/owner can cater to the requirements of other customers also even though they have entered into an agreement with the appellant. Thus, the fourth limb of the earlier definition has been given go-by after 16.06.2005 and hence, the argument of the learned Counsel that the issue is an interpretational one is not without force. The impugned order is modified to the extent of setting aside the demand for the extended period only - appeal allowed in part.

Summary

Issues:
1. Demand of service tax under franchise services for a specific period.
2. Imposition of penalties under Section 76 and 78 of the Finance Act, 1994.
3. Invocation of Section 80 of the Finance Act, 1994 by the Commissioner (Appeals).
4. Interpretation of the definition of franchise services pre and post 16.06.2005.
5. Argument of limitation in the case.

Analysis:
1. The case involved a demand for service tax under the category of franchise services for a specific period. The original authority confirmed the demand along with penalties under Section 76 and 78 of the Finance Act, 1994. The Commissioner (Appeals) waived the penalties imposed, invoking Section 80 of the Finance Act, 1994. The appellant contested the demand before the Tribunal, arguing on the ground of limitation.

2. The appellant's counsel argued that the appellant had entered into agreements with car owners for call center charges, which did not fulfill all conditions of the franchise service definition pre-16.06.2005. The appellant had been paying service tax under Business Auxiliary Services post-01.03.2006, which was not disputed by the Department. The counsel contended that the demand for the extended period was not sustainable due to an interpretational issue and lack of evidence of suppression of facts.

3. The Department contended that the appellants had not intimated the Department about rendering franchise services and had suppressed facts, justifying the demand for the extended period. The Department argued that the non-payment of service tax would not have been discovered without their intervention.

4. The Tribunal analyzed the definition of franchise services pre and post 16.06.2005. It noted that the amended definition post-16.06.2005 did not require fulfillment of all conditions for an agreement to fall under franchise services. The Tribunal observed that the appellant's agreement with vehicle owners did not restrict them from catering to other customers, indicating a lack of exclusivity. Considering the appellant's consistent payment of service tax under Business Auxiliary Services post-01.03.2006, the Tribunal found the demand for the extended period unsustainable due to the absence of evidence of suppression of facts.

5. Ultimately, the Tribunal modified the impugned order, setting aside the demand for the extended period only. The appeal was partly allowed based on the above findings, providing relief to the appellant concerning the demand for the extended period.