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TMI Blog2019 (5) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... TOMS AND CENTRAL EXCISE, GOA VERSUS SHRI. SWAPNIL ASNODKAR [ 2018 (1) TMI 266 - CESTAT MUMBAI] is squarely applicable to the present case also. A set of services alleged to be falling under BSS by the Revenue is also held to be covered under another set of services namely Brand Promotion Services. Admittedly, the brand promotion service was introduced w.e.f. 01.07.2010 and as observed as having been argued by the Ld. DR in paragraph-6 above of this order, cannot be made use to fit into another service ie., the categorization of the same set of activities under two different services for two different periods is not permissible. Having taxed under BSS, the Revenue should not have changed its stands for a different period when there is no change in the nature of services alleged. The decision of the Hon ble Kolkata High Court in the case of SOURAV GANGULY VERSUS UNION OF INDIA OTHERS [ 2016 (7) TMI 237 - CALCUTTA HIGH COURT] is required to be followed, there exists employer-employee relationship, the players are paid remuneration and therefore, there is no service which is liable to be brought under the tax net for both the periods under the alleged heads - there cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. Assessee SCN No. date Period involved S.Tax demand proposed in the SCN under the category of service 1 ST/41245/14 L. Balaji 667/2010 18.10.10 2009-10 2010-11 19,28,999 BSS 2 ST/41246/14 L. Balaji 335/10 30.04.10 2008-09 14,90,371 BSS 3 ST/41247/14 S. Badrinath 650/10 18.10.10 2009-10 2010-11 19,28,999 BSS 4 ST/41248/14 S. Badrinath 336/10 30.04.10 2008-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58/11 21.10.11 2010-11 49,025 BSS/BPS 15 ST/41412/14 Aniruda Srikkanth 16/10 05.04.10 2008-09 3,90,355 BSS 16 ST/41413/14 Aniruda Srikkanth 65/10 14.10.10 2009-10 3,08,160 BSS 17 ST/41414/14 Aniruda Srikkanth 58/11 21.10.11 2010-11 49,026 BSS/BPS 18 ST/41415/14 Suresh Kumar 17/10 05.04.10 2008-09 3,90,355 BSS 19 ST/41416/14 Suresh Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. Ganapathy 69/10 14.10.10 2010-11 94,897 BSS 30 ST/41427/14 Arun Karthik K.B 21/2010 05.04.10 2008-09 2,58,331 BSS 31 ST/41428/14 Arun Karthik K.B 63/2010 14.10.2011 2009-10 2,36,122 BSS 32 ST/41429/14 Arun Karthik K.B 63/2011 21.10.2011 2010-11 1,77,426 BSS/BPS 33 ST/41430/14 Kaushik Gandhi 71/2010 18.10.10 2010-11 38,249 BSS 34 ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 ST/42014/16 R. Aswin SOD 63/12 22.10.12 2008-09 2009-10 to 2010-11 2011-12 4,86,131 BPS 45 ST/42015/16 S. Badrinath SOD62/12 22.10.12 2008-09 2009-10 to 2010-11 4,62,441 BPS 46 ST/42016/16 Abhinav Mukund SOD 54/12 26.09.12 2008-09 2009-10 to 2010-11 58,056 BSS/BPS 47 ST/42017/16 Yo Mahesh SOD 57/12 09.10.12 2008-09 2009-10 2010-11 66,708 BSS/BPS 48 ST/40599/14 Dinesh Karthik 754/10 16.11.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zes contract, extracts Section 65 (104c) (105) (zzzq) and at paragraph 11.2, and thereafter imposed equal penalties under Section 76 77 of the Act as well. The assessees preferred appeals before the Commissioner of Central Excise (Appeals), who passed a common order dated 29.01.2014 in respect of 13 assessees, in Order-in-Appeals No. 01-26/2014 (MST), a separate order was passed vide OIA No. 34 35/2014 on the same day in respect of the assessee Shri Yo Mahesh. 4. Ld. Consultant, Shri Joseph Dominic appeared on behalf of the assessees and the Ld. DR, Shri K. Veerabhadra Reddy, ADC, appeared on behalf of the Revenue. Contentions:- 5.1 It is the case of the Ld. Consultant for the assessees, interalia, that the conclusion of the Revenue that the assessees had rendered business promotion services which cannot be considered as BSS; M/s. India Cements Ltd. (ICL in short) did not outsource any part of their business activities to the assessees and therefore there cannot be any scope for rendering any service which could be treated as BSS; that prior to 01.07.2010 brand promotion was not a taxable service and therefore, brand promoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 (44) STR 159 (S.C). The Ld. Consultant also drew our attention to the CBEC Circular dated 26.07.2010 which in fact has also been referred to by the Hon ble High Court of Kolkata (supra). Ld. Consultant also relied on the following decisions to support his contention that a composite contract is required to be bifurcated in order to arrive at the taxable value of the services a. National Institute of Bank Management Vs. CCE, Pune 2013 (32) STR 340 (Tri.-Mum.) b. Vikas Coaching Centre Vs. CCE, Guntur 2011 (22) STR 650 (Tri.-Bang.) 5.4 On the allegation of brand promotion of the franchisee, the ld. Consultant drew support from the decision of the Delhi Bench of the Tribunal in the case of Peoples Automobiles Ltd. Vs. CCE, Kanpur 2011 (24) STR 635 (Tri.-Del.) to say that using recipient s brand name while providing a service to them would not mean using the recipient s brand name for providing the service. 5.5. With regard to the next batch of appeals pertaining to the period 2011-12 the demand for which were raised under the Brand Promotion service, the ld. Consultant reiterated his primary contention that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of M/s. ICL, the franchisee owners of Chennai Super Kings in the IPL, a taxable activity under BSS. With regard to the demand under Business Promotion Services for the period post 01.07.2010, Ld. DR relied on the findings of the first appellate authority. Our Analysis and Findings: 7.1 The period of dispute in all the above appeals is 2008-09 to 2010-11; upto 30.06.2010 the service tax was fastened by categorizing the service under BSS whereas, for the period 01.07.2010 to 31.03.2011, the demand is raised by categorizing the same under Business Promotion Service. 7.2 The genesis of the dispute is the tripartite agreement between the Board of Control for Cricket in India (BCCI), franchisee and the assessee the terms and conditions of which are common in respect of all the players/assessees except the remuneration. On a perusal of the above tripartite agreement titled Indian Premiere League Playing Contract (Contract in short) it clearly emerges that it is the assessee who is recognized as a player first. There is also one another agreement between the franchisee and the assessee wherein also, an assessee is recognized as a pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be brought under the tax net for both the periods under the alleged heads. In view of the above, this ground of the department appeals are liable to be dismissed, which we hereby do, for the same reasons, there cannot be liability under BPS and consequently, the assessee s appeals are required to be allowed and the same are allowed. 7.5 The next point urged on behalf of the assessees is that the working of the taxable value where the Revenue sought to include, for the year 2011-12, the prize money. It is not disputed by the Revenue that the prize money was not given by its franchisee, it s rather the money received from BCCI directly for winning and not towards any services. Hence, we are of the view that the prize money could never be included in the taxable value. But, however, since we are holding that there was no service at all, the above question is just academic. 8. In the result, all the assessee s appeals are allowed and all the Revenue appeals are dismissed. 9. We find that the prayer for amendment of the cause title in the miscellaneous applications filed by the Revenue needs to be amended in accordance with the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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