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TMI Blog2023 (1) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... s business support services. Appellants are not promoting any particular brand or product or service and also not taking part in any business activity of promoting the sale of any product or service of any entity. The entry for Business Support Service envisages taxing activities which are needed for doing business activities almost in the nature of outsourcing of activities connected with business. The definition of Business Support Service does not specifically cover the activity done by Appellant. Further, on perusal of the agreement title Indian Premiere League Playing Contract it clearly emerges that it is the appellant who is recognized as player first. Clause -2 of this agreement even makes it all the more clear that the franchisee is engaging players as professional cricketer who shall be employed by the franchisee. From this, it is abundantly clear that a person who has earned the reputation and recognition as a player is employed by the franchisee and it is not the other way round - the employer employee relationship cannot be disputed and therefore the decisions relied upon by the Learned Counsel are squarely applicable to the present case. Reliance can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate for the Appellant Shri Dinesh M. Prithiani, Assistant Commissioner (AR) for the Respondent ORDER These appeals are filed against the Orders-In-Appeal No. 10/VDR-II/S.T./OA/IrfankhanPathan /ADJ/COMMR/2011-12 dated 14.12.2011 and 11/VDR-II/S.T./OA/Y.M.Pathan/ADJ/COMMR/2011-12 dated 14.12.2011. The issue involved in both the appeal is same and therefore are considered together and common order is being passed. 02. Briefly the facts of the present case are that both the appellants are international cricket players and they had entered into contract with the cricket team owners (known as franchisee) whereby they were employed/ engaged to play cricket for the respective teams in terms of the contracts for IPL seasons. The fees paid to the Appellants has been held to be liable to service tax under the service category of Business Support Service . This view has been taken on the ground that Appellant wear the team clothing which bears the brands/ marks of various sponsors and they are also required to participate in promotional /public events of the franchisee thus they are providing Business Support Service. Based on such reasoning show cause notices were issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 He further submits that clause 4.1. is also otherwise quite explicit inasmuch as the same clearly state that the right granted by the player to the franchisee shall not be so as to imply any individual endorsement by the player of any person, product or service and in such circumstance, player of any person, product or service and in such circumstance, player identification will normally be used with not less than two other player from the champions tournament. As such it is clear that the Appellant was not the one endorsing/promoting any person/product/ service, but it was only the franchisee who was doing so, with clear understanding that the same shall not amount to endorsement being made by the player himself. Further, reading of the entire agreement established the facts that playing cricket is the primary reason for which IPL was formed and promotional activities are ancillary to the main purpose that of playing cricket. The main activities of the Appellant, as per contact, is to play cricket as they spent 95% time for it, the other rights i.e. photography, film, television otherwise recording and performance during contract period including training and press conference gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of adjudicating authority and submits that there does not exist employer employee relationship as there is no contract of employment as Appellants are a cricketer in a profession. No proof of salary/ remuneration payment is produced in from 26AS and its tax deduction under salary head. 4.1 He also submits that the decisions as relied upon by the appellant have either been challenged in Hon ble Apex Court or has been set aside, their appeal may be dismissed or kept pending or sine dine adjourned till disposal by Apex Court 05. Heard both sides and perused the records. After considering the submission of both the parties and on perusal of the materials of records, we find that the show cause notice was issued proposing to demand service tax under Business Support Services and both the adjudicating authority has confirmed the demand under the said category. Support services of business or commerce has been defined in sub-section (104c) of Section 65 of the Finance Act to mean as follows : (104c) Support services of business or commerce means services provided in relation to business or commerce and includes evaluation of prospective customers, telemarketing, proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the franchisee. From this, it is abundantly clear that a person who has earned the reputation and recognition as a player is employed by the franchisee and it is not the other way round. The revenue while referring to clause -5 of the contract wants to impress that by virtue of the dress code, a player is obligated to his franchisee. On going through the clauses 5.2.,5.3,5.4 which prohibits commercial usage of supplied clothing. Therefore, if the same is considered as a binding condition, then its all the more strengthens the employer employee relationship and we do not see anything wrong with employer prescribing uniform code with his employee. Further, as seen from the clause 2 and clause 8.1(b) read with other clause of the agreement , there is no doubt that appellant has been appointed/ engaged by the respective Franchisee under the agreement of employment . The agreement create the relationship of employer employee . After carefully considering the facts of the case, we find that the employer employee relationship cannot be disputed and therefore the decisions relied upon by the Learned Counsel are squarely applicable to the present case. Though there are many cases dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of Sourav Ganguly Vs. UOI - 2016 (43) STR 482 (Cal.) relied on by the Ld. Consultant for the assessees which decision has been followed in Shri Karan Sharma Vs. CCE ST, Meerut-and CCE, Goa Vs. Swapnil Asnodkar (supra) is squarely applicable to the present case also. 7.3. 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. 7.4 On an overall analysis and in view of our findings herein above, we find that the decision of the Hon'ble Kolkata High Court in the case of Sourav Ganguly (supra) is required to be followed, there exists employer-employee relationship, the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed ne demand of service tax under business support service. He also submitted that when the Commissioner (Appeals) found that the appellant has not provided business support service, then the demand of service tax has to be set aside and the learned Commissioner (Appeals) has no authority to go ahead and confirm the demand of service tax under a new taxable head which was never the case of the department. He further submitted that it is well settled that the department cannot travel beyond the show cause notice and whatever case has been set up by the department in the show cause notice fails and therefore the demand has to be set aside. In support of these submissions, he relied upon the following decisions:- Swapnil Asnodkar vs. CCE, Goa - 2018-TIOL-92-CESTAT-MUM; Warner Hindustan Ltd. vs. CCE, Hyderabad - 1999 (113) ELT 24; CCE, Goa vs. R.K. Construction - 2016 (41) STR 879; Balaji Contractor vs. CCE, Jaipur-l1-2017 (52) STR 259; Sourav Ganguly vs. UOI - 2016 (43) STR 482 (Cal.); Learned counsel also submitted that in fact the appellant-assessee is not providing any service to the franchisee let alone business support service or brand p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a whole and there could not be any quantification of any work done or service provided by the respondent. He was simply a purchased member of the team working under KPH. He was in employment of KPH-IPL and was not an independent worker. It is settled legal position that services provided by an employee, for the activities undertaken by the employer, for and under the instruction of the employer, cannot be termed as service provided by the employee. 7. An identical matter titled as Sourav Ganguly v. UOI Ors.; 2016(43) STR 482 (Cal.), has been decided by the Hon'ble Calcutta High Court in favour of cricketer. The Petitioner therein entered into an agreement with the franchisee under which he was obliged to participate in promotional activities apart from playing cricket for their franchisee and the department sought to tax the consideration received by the Petitioner from their franchisee under 'Business Support Service'. The Hon'ble High Court of Calcutta held that the Petitioner was engaged as a professional cricketer for which the franchisee was to provide fee to the petitioner. He was under full control of the franchisee and had to act in the manner instruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.3 Sec. 65 (105) (zzzzq) pertains to brand promotion whereas Sec. 65(104c) pertains to business auxiliary services. They are two distinct and separate categories. As already indicated above, the taxable head of brand promotion was not in existence prior to 1 July, 2010, hence, reliance on that head for levying tax on the amount received by the petitioner from the IPL franchisee is misplaced and misconducted. This is sufficient to vitiate the order. 69. Further, find from the contract entered into by the petitioner with the IPL franchisee that the petitioner was engaged as a professional cricketer for which the franchisee was to provide fee to the petitioner. The petitioner was under full control of the franchisee and had to act in the manner instructed by the franchisee. The apparel that he had to wear was team clothing and the same could not exhibit any badge, logo, mark, trade name etc. The Petitioner was not providing any service as an independence individual worker. His status was that of an employee rather than an independent worker or contractor or consultant. In my opinion, it cannot be said that the petitioner was rendering any service which could be classified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing his cricket skills in a cricket match. He also lent himself to business promotional activities. Thus, he provided taxable service when he wore apparel provided by the franchisee that was embossed with commercial endorsements or when he participated in endorsement event. The Department admits that the fee charged for playing the matches will fall outside the purview of taxable service. However, the Department contends that the petitioner has been paid composite fee for playing matches and for participating in promotional activities but the component of promotional activities could not be segregated for charging service tax. Accordingly, service tax is chargeable on the composite amount. For this contention, the Department relied on the letter dated 26 July, 2010 issued by the Central Board of Excise and Customs which is also under challenge in this writ petition. In his order dated 12 November, 2012 the Respondent No. 3 has held that the petitioner has received substantial remuneration from IPL franchisee (Knight Riders Sports Pvt. Ltd.) for rendering of promotional activities to market logos/ brands/ marks of franchisee/ sponsors. Such fees/ remuneration have been paid to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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