2015 (12) TMI 492 - AT - Service Tax

Demand of service tax - one-time franchise charges for transfer of technical know-how and for marketing of products - Held that - On examining the terms and conditions of the agreement we have to agree that the arguments advanced by the Ld. counsel on behalf of the respondent is not without substance. The fourth limb of definition of franchise agreement as noted above is that the franchisee is put under an obligation not to engage in selling or providing similar goods or services or process, to any other person. The agreement entered on 01/04/2003 by the respondents with M/sMalkoh marketing (P) Ltd., does not stipulate any such condition imposing an obligation upon M/s Malkoh Marketing (P) Ltd. On such score, the agreement does not fit into the definition of franchise agreement as it stood during the relevant period. Since the agreement does not satisfy condition No. 4 of the definition of franchise agreement, the services provided in pursuance of the agreement also will not fall into the category of franchisee service. The demand has been rightly set aside by the Commissioner appeals and the impugned order calls for no interference. - Decided in favour of assessee.

Summary

Issues:
Challenge to service tax demand under franchise service category.

Analysis:
The appeal was filed by the revenue challenging the impugned order that set aside the service tax demanded under the franchise service category. The case involved an agreement between the respondents and another company for the transfer of technical know-how and marketing of products in exchange for a one-time franchise fee. The Department contended that the consideration received was subject to service tax as franchise services became taxable. A show cause notice was issued, leading to the original authority confirming the service tax demand, interest, and penalty. The respondents appealed to the Commissioner (Appeals), who set aside the demand, prompting the revenue to appeal to the tribunal.

The revenue argued that the respondents should pay service tax as the franchise services became taxable, and any amount received for services before, during, or after providing such services is subject to service tax. The revenue claimed that even though the agreement was made before the taxable period, the consideration received should be taxed as the services were rendered subsequently. The revenue contended that the Commissioner (Appeals) erred in ruling that no service tax was payable on the amount received before the taxable period.

On the other hand, the respondent's counsel argued that the demand lacked a legal basis. Referring to the definition of franchise service during the relevant period, the counsel highlighted that the agreement did not fulfill the fourth condition of the definition, which required the franchisee to be under an obligation not to engage in similar services with any other person. Therefore, the counsel asserted that the agreement did not fall within the definition of a franchise agreement, and the services were not subject to service tax.

After careful consideration of the agreement terms, the tribunal agreed with the respondent's arguments. The tribunal noted that the agreement did not impose an obligation on the other party to refrain from providing similar services to others, as required by the definition of a franchise agreement during the relevant period. Consequently, since the agreement did not satisfy the fourth condition of the definition, the services provided under the agreement did not qualify as franchise services. The tribunal upheld the decision of the Commissioner (Appeals) to set aside the demand, concluding that no interference was warranted.

In conclusion, the tribunal dismissed the appeal filed by the revenue, affirming the decision to set aside the service tax demand under the franchise service category.