2018 (8) TMI 241 - AT - Service Tax

Franchisee Services - appellant is a franchisee of trade name Shemrock owned by Dr. Bimla Arora. The appellant, in turn, entered into agreements with various parties wherein the name was licensed to run the Preparatory schools against consideration as per the terms and conditions agreed - Held that - The similar case of M/s.Saanj and Savera Educational & Welfare Trust 2015 (10) TMI 1053 - CESTAT NEW DELHI wherein under identical set of facts and clauses of agreement, the Tribunal has held that as per the agreement clauses, the transaction between the parties do not fall under the definition of Franchisee services due to non-satisfaction of the fourth condition - the demand for the period upto 16.06.2005 was set aside. Further, liability w.e.f. 16.06.2005, the adjudicating authority is directed to re-compute and recover the same alongwith interest. The appellant further has requested for the cum-duty benefit. The same may be extended in terms of Section 67. Appeal allowed in part and part matter on remand.

Summary

Issues:
1. Applicability of Service Tax on franchisee services provided by the appellant.
2. Interpretation of the definition of franchisee service under Section 65(47) of the Finance Act, 1994.
3. Assessment of liability for Service Tax for the period prior to and post the amendment dated 16th June 2005.
4. Comparison of the present case with the precedent set by the Tribunal in the case of Saanj and Savera Educational Welfare Trust.

Analysis:
The appeal revolved around the liability of the appellant, a preparatory school franchisee, to pay Service Tax categorized under Franchisee Services as per Section 65(47) of the Finance Act, 1994. The dispute arose from the Department's contention that the appellant was obligated to pay Service Tax for the period from 01.04.2004 to 31.03.2008. The primary issue was whether the appellant fulfilled all conditions, including condition (d), under the definition of franchisee service. The appellant argued that for the period before 16.06.2005, they were not liable to pay Service Tax as they did not satisfy condition (d) as per the amended definition. The Tribunal noted that the appellant met conditions (a) to (c) but not (d) as they were not obliged to refrain from engaging in similar services with other entities.

The Tribunal analyzed specific agreements the appellant had entered into, highlighting clauses that indicated the absence of an obligation to refrain from providing similar services to other entities. Notably, under the License Agreement with one individual, the licensee was explicitly not restricted from receiving similar services from any institution. Additionally, the Franchise Agreement with another entity showed that the owner of the trade name "Shemrock" had similar arrangements with other trusts for running preparatory schools under the same name. Drawing parallels with a previous case involving Saanj and Savera Educational Welfare Trust, the Tribunal found that the appellant's transactions did not fall under the definition of Franchisee Services due to the non-fulfillment of the fourth condition (d).

Consequently, the Tribunal set aside the demand for Service Tax for the period preceding 16.06.2005 based on the precedent set by the Saanj and Savera case. However, the liability for Service Tax from 16.06.2005 onwards was upheld, directing the adjudicating authority to re-compute and recover the amount along with interest. The appellant's request for cum-duty benefit was also acknowledged, to be extended in accordance with Section 67. Ultimately, the appeal was disposed of based on the Tribunal's findings and the interpretation of the relevant legal provisions and agreements presented during the proceedings.