2015 (10) TMI 1053 - AT - Service Tax

Tribunal rules no service tax pre-16.6.2005 for franchise agreement lacking exclusivity clause

The Tribunal allowed the appeal, ruling that no service tax was leviable under franchise service before 16.6.2005. The appellant successfully argued that ... Liability of Service Tax – Franchisee Service or not - activity of running a pre-preparatory/preparatory school. – Appellant contends that definition of franchise under Section 65(47) of the Finance Act, 1994 is not satisfied; Appellant was not under an obligation not to engage in selling or providing similar goods or services or process, identified with any other person thus not liable to pay service tax – Revenue contended that Appellant, under the Franchise Agreement, was under an obligation not to engage in selling or providing similar goods or services or process, identified with any other person thus liable to service tax. Held That:- No Service Tax is leviable as agreement does not fall in the category of franchise agreement as defined under Section 65(47) ibid prior to 16.6.2005 – Decision made in the case of Dewsoft Overseas Pvt. Ltd. Vs. CST, New Delhi [2008 (8) TMI 50 - CESTAT NEW DELHI] followed – Appeal allowed in favour of the Appellant. Issues:1. Whether service tax is leviable under franchise service prior to 16.6.2005.Analysis:The case involved a stay application and appeal against an order confirming a service tax demand under franchise service. The appellant contended that the franchise agreement did not satisfy all conditions under the definition of franchise prior to 16.6.2005. The dispute centered on whether the franchisee was under an obligation not to engage in selling or providing similar goods or services with any other person.The appellant argued that while conditions (i), (ii), and (iii) of the franchise definition were met, condition (iv) regarding the obligation not to engage in similar activities with others was not fulfilled. The appellant highlighted a clause in the agreement stating that the franchisee could not open a school with the same name in the same area if the agreement was canceled, but could do so in a different area. This clause indicated that the franchisee was not restricted from engaging in similar activities elsewhere.The Revenue, represented by the ld. DR, contended that the franchisee was indeed obligated not to engage in similar activities with others, thus making the service tax leviable even before 16.6.2005. However, the Tribunal examined the agreement clause and found that it did not restrict the franchisee from opening a school with a similar name in a different area, indicating that condition (iv) of the franchise definition was not satisfied.Referring to a previous judgment, the Tribunal emphasized that the burden of proving a franchise agreement, as defined under the law, rested on the Revenue. Ultimately, the Tribunal allowed the appeal, ruling that no service tax was leviable under franchise service before 16.6.2005. Consequently, the demand, interest, and penalty related to the period before this date were set aside.