2019 (1) TMI 436 - AT - Service Tax

Franchise services - use of logo and study material to their USA based franchiser, namely, M/s. Crest Com International Limited, USA - Held that - While appellants have been consistently contending that the amount sent to Crest Com International Ltd., U.S.A has already suffered, both the lower authorities have chosen to disregard the same on the grounds that such claim is not backed up with necessary documentation. On the other hand, appellant has argued that they have supplied necessary evidence to substantiate their averment before both the lower authorities, however the same has not been adequately considered - the matter requires to be remanded to original authority to cause necessary verification. Penalty u/s 78 - Held that - Penalty imposed under Section 78 is an overkill and requires to be set aside. Appeal allowed in part and part matter on remand.

Summary

Issues:
1. Whether the activity of the appellants falls under 'Franchise services' as per Section 65 (105) (zze) of the Finance Act, 1994.
2. Whether the demand of service tax on amounts shared with the USA producer is sustainable.
3. Whether the appellants have adequately substantiated their contention regarding payment of service tax on amounts paid to the foreign service provider.
4. Whether the penalty imposed under Section 78 is justified.

Issue 1:
The case involved a dispute regarding whether the activity of the appellants fell under 'Franchise services' as per Section 65 (105) (zze) of the Finance Act, 1994. The department contended that the payments made by the appellants to their USA-based franchiser for the use of logo and study material constituted 'Franchise services.' The original authority confirmed the demand of service tax, interest, and penalty, which was upheld by the Commissioner (Appeals). The appellants argued that the sharing of revenue was done after payment of applicable service tax and relied on a judgment of the Kerala High Court to support their case.

Issue 2:
The appellants disputed the demand of service tax on amounts shared with the USA producer, arguing that all payments received from distributors had service tax collected and remitted to the department. They contended that there was no separate service envisaged from the USA supplier to the master distributor, and therefore, no further levy of service tax was justified. The department, however, argued that the appellants had not produced evidence to show that service tax collected had been paid to the department.

Issue 3:
The Tribunal found that the lower authorities had not adequately considered the appellant's contention that the amounts paid to the foreign service provider had already suffered service tax in India. The Tribunal observed that while the appellants consistently claimed that payments were made only after payment of service tax, the lower authorities disregarded this due to lack of documentary evidence. The matter was remanded to the original authority for necessary verification on whether the payouts made to the foreign service provider had indeed suffered service tax earlier.

Issue 4:
Regarding the penalty imposed under Section 78, the Tribunal found it to be excessive and set it aside, deeming it an overkill considering the facts on record and the genesis of the dispute. The appeal was partly allowed, and the matter was remanded to the original authority for further verification. The Tribunal also allowed the Revenue's application for a change of cause title.

This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, and the Tribunal's decision on each aspect of the case.