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TMI Blog2019 (11) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts as per the terms and conditions prescribed by the corporation. The respondent herein entered into dealership agreement in the nature of "rental outlet dealership agreement" and were collecting charges in the name of service station license fee from their dealers towards various outfits and facilities installed/provided in retail outlet premises. For the period with effect from 16.05.2008 when supply of tangible goods became subject to levy of service tax, the respondents started paying service tax on such license fee collected by them under the category of 'Supply of tangible property service'. The department was of the view that the said category of service is in the nature of infrastructural support services and would fall under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um products is nothing but business support service. Therefore, the consideration collected by the respondent in the nature of service station license fee is taxable under business support services and not under supply of tangible goods services. The Commissioner has erred in holding that the said services fall under supply of tangible goods services. He prayed that the order passed by the Commissioner may be set aside and the proceedings initiated against the assessee may be restored. 3. The learned counsel Shri G. Prahlad argued on behalf of the respondent. The respondents have been discharging service tax on the license fee collected by them under supply of tangible goods service from 16.05.2008 onwards. The department now proposes to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. 4.1 The learned counsel also submitted that the department has taken inconsistent and contradictory views in different instances in respect of the issue of classification of license fee collected by way of such dealership agreements. In another proceeding initiated, wherein the proposal in the show-cause notice was to classify the service as 'Renting of Immovable Property Service' and demand service tax, the jurisdictional officer at Visakhapatnam in Order-in-Appeal No. 28/2013 dated 24.06.2013 held that the service is classifiable under supply of tangible goods service. The department has appealed against such order before the CESTAT which is pending. 4.2 In another case, pertaining to respondent Branch in Mumbai, the department so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. For better appreciation relevant part clause (e) of the dealership agreement is reproduced as under: "(e) For the use of the said premises including the construction thereon and outfit, the Dealer shall pay to the Corporation a licence fee as may be fixed and recovered or deducted in the manner as may be decided by the Corporation from time to time. It is expressly agreed to by the Dealer that the Corporation, at its sole discretion and without any previous notice to the Dealer shall from time to time and at all times be entitled to increase or revise or modify the said licence fee. The Corporation shall however advise the Dealer the basis or formula for the recovery of such licence fee. The licence fee shall be payable free of all d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice. A transaction which allows another person to use the goods without transferring legal right of possession or effective control is brought into the levy of service tax under this category when machinery, equipment etc. though fixed to earth is allowed to be used by another without transfer of possession and effective control, the activity would be taxable as service under supply of tangible goods service., From the agreement, the right to possession of the outfits remains with the respondents. It is for the respondents to carry out maintenance of these outfits and facilities and respondent can remove these outfits without assigning any reasons. The effective control of the outfits also thus remains with respondents and there is only ri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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