TaxTMI 
TaxTMI 
2016 (1) TMI 850
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.... for the period 1.1.2005 to 31.3.2006 demanded in the show cause notice dated 6.10.08 for Architect services. The amount deposited alongwith interest for the Architect services was appropriated. Payment of interest and penalties under Section 76, 77 and 78 were also imposed. The appellant are in appeal against the said order of the Commissioner. 2. We find in this case that two show cause notices dated 6.10.2008 and 23.07.2009 were issued for the period and for services categories as shown in the table below: SCN date Period Service category Within Mumbai Outside Mumbai Total Demand 06.10.2008 2003-08 Pouring Fee 63,49,600 (7,22,641) 2,52,86,742 (27,81,983) 3,16,36,342 (35,04,624) Signing Fee 35,00,000 (3,57,000) 1,05,00,000 (9,94,000) 1,40,00,000 (13,51,000) 2003-06 Architect Fees 1,29,42,991 (10,67,091) 23.07.2009 2008-09 Pouring Fee 5,17,808 (64,001) 5,17,808 (64,001) Total Pouring Fee/Signing Fee 98,49,600 (10,79,641) 3, 63,04,550 (38,39,984) 4,61,54,150 (49,19,625) SCN DATE Period Service Category Turnover Total demand 6.10.2008 Upto 31.12.2002 Archi....
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....enue reiterates the findings of the impugned order. He took us through the Agreement between CCIPL and the appellant. He drew our attention to various clauses in support of the contention that the services rendered by the appellant are squarely covered under Business Auxiliary Service. 5. Heard both sides. 6. We have carefully considered the submissions made by both sides. The issue centers around the Agreements between CCIPL and the appellant. Therefore it is appropriate to reproduce the salient clauses of the Agreement dated 18.2.2003 as below:- 2. Grant of beverage availability and advertising and promotional rights. 2.1.1 INOX hereby grants to CCIPL the right to make Beverages available as listed in Schedule 5 for consumption by INOX through the Outlets in the premises, either as RGB, PET, Can or as Fountain Beverages, at each of the Premises subject to the terms and conditions hereinafter provided. 2.2 INOX hereby grants to CCIPL the following Promotional and Advertising Rights in respect of Beverages in the Premises. 2.2.1 INOX authorizes CCIPL to have reasonably prominent signage ("the Signages") as may be desired by CCIPL and agreed to by INOX, for promoting the ....
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....vie in which The Coca-Cola Company advertisement is going to run, two days prior to the commencement of the week. 4.3.4 INOX shall pay to CCIPL, or such other company as may be designated by it, for the supplies of Beverages and/or Concentrates in accordance with the provisions contained in Schedule 7. 4.3.6 INOX shall not within any part of the Premises, sell, stock, display, promote or otherwise make available, or permit to be sold, stocked, displayed, promoted or otherwise available, or enter into any agreement for the same, with the Competition as set out in Schedule 4, any soft or aerated drinks or package drinking water other than those pursuant to this Agreement. Provided that the aforesaid exclusively granted by INOX to CCIPL shall apply only in respect of, but without limitation, to the premises of the Operational Locations. 4.3.9 INOX shall ensure that Singapore and panels promoting Products shall be illuminated at all times, where applicable, during which the outlet is operational and shall bear the cost of electricity consumed in respect of such lighting of the signages. 5. ADVERTISING, MARKETING AND SALES PROMOTION: 5.1 It is hereby agreed by and between the ....
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....'Pouring fee' from all properties/locations was included in the Balance Sheet of the appellant in a consolidated manner under the income Head i.e. food and beverages, the DGCEI issued the demand show cause notice answerable to Commissioner of Service Tax, Mumbai demanding service tax on the fees collected from each location. It is not disputed that each of the locations had separate Service Tax registration. It is also not disputed that the services were provided by the appellant from a Multiplex in each location individually. Therefore there is merit in the contention of the Ld advocate that the Commissioner of Service tax has no jurisdiction to adjudicate the case in respect of services received beyond jurisdiction. The finding in the impugned Order does not address this issue appropriately. The only finding is that it was never brought to the notice of the investigating officer that appellant were registered with the Service Tax department at each location in India. The Commissioner observed that since the centralized accounting system is a matter is within the appellant's control, they cannot be permitted to claim that they made a wrong presentation and therefore th....
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....ere different. There it was held that, on being show caused, a person could not insist that they be issued show cause notice from all the various places from where it rendered its services. The facts were that services were being provided from Delhi office, the agreement provided that all notices, demands and other communication be addressed to the Delhi address. Help desk services were provided from Delhi as well as Hardware repair services. In these circumstances it was held that the Delhi Commissionerate had jurisdiction to issue the show cause notice. In the present case the issue is of extra territorial adjudication by the Commissioner. On the issue of extra territorial jurisdiction the Apex Court in the case of Kiran Singh (Supra) held that: It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that is invalidity could be set upon whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very a....
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....he appellant for promoting products of the appellant by way of signage and panels (clause 4.3.9 of the agreement). Further the appellant were prohibited from selling, stocking, displaying any other soft/aerated drinks that other than those manufactured by CCIPL (Clause 4.3.6). The entire furniture, fixtures and fittings were installed by the CCIPL. As per clause 2, the appellant granted CCIPL the promotional and advertising rights in respect of beverages in the multiplexes and to have prominent signage. All these clauses indicate that the appellant provided the Business Auxiliary Services under Section 65(105)(zzb) read with definition of Business Auxiliary Service under Section 65 (19) (i), by promoting sale of goods provided by the client". 9.1 We do not agree with the Ld. Advocate that the activity performed by them falls under different services such as non compete clause, sale of space or time, brand promotion. Reading of the entire agreement holistically leads to only one conclusion, that the appellant were providing services for marketing of goods provided by the client. It is not necessary that to promote the product, the goods have to be owned by the client. Therefore the....
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..... 10. Above discussion on the basis of the Agreements leaves no room for doubt to hold that the appellant provided BAS to its client CCIPL on which tax is payable. However, we agree with the appellant that the service tax on import of 'Architect Services" attracts levy of service tax only from 18/4/2006 onward. We need not dwell on this issue that service tax on import of services is payable by the recipient of the service under Section 66 (A) only w.e.f. 1/5/2006 when the Section 66(A) was brought into effect. This is the settled legal position as held by the Hon'ble Mumbai High Court in the case of Indian National Ship Owners Association (supra). 11. On the issue of invocation of extended time period for part of the demand for period prior to one year before the issuance of show cause notice dated 6/10/2008, we find that the various locations of the appellant were duly registered under service tax. In such case, responsibility is cast on the appellant to furnish details to the authorities at prescribed frequency under Rule 7 of the Service Tax Rules and declare the services rendered, assess the tax due and make the payment of service tax by the due date. It is only in p....