TaxTMI 
TaxTMI 
2017 (9) TMI 894
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.... concession is received by the appellant as a percentage of the goods sold subject to a minimum guaranteed amount. For the said arrangement of concession, the appellant entered into a Concession Agreement with the concessionaires. The case of the revenue is that under the concession agreement, the appellant provided various facility in relation to commerce to the concessionaire which fall under the category of Business Support Service and towards the said service they receive consideration by way of percentage of sale of the concessionaire's goods from their stores. On such consideration, the appellant is liable to pay the service tax. Accordingly a show cause notice dated 22.10.2009 was issued to the appellant for the period 01.05.2006 to 31.05.2007 demanding service tax of Rs. 3,44,45,034/- alongwith interest thereon and proposing penalties under the provisions of Finance Act, 1994. The show cause notice was culminated into an Adjudication Order, whereby the service rendered by the appellant to the concessionaires was held to be classified under Business Support Service and consequently demand of service tax was confirmed alongwith interest and penalties were imposed. Being a....
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....nation, it enlarges the scope and provides that the infrastructure support services shall include providing offices alongwith utilities, lounge, reception, secretarial services, internet, telecom facilities, pantry and security services. The Commissioner incorrectly narrates that the facilities provided by the appellant on the submissions that- a) The appellant do not provide any reception with competent person to handle message. b) No internet facilities are provided to the concessionaire. The telephone facitlity is provided on payment basis. c) The security service is provided in general, as the appellant owns the entire store. The security of mall as well as goods belonging to the appellant is provided. The agreement makes it clear that the concessionaire shall be wholly responsible for the safety and security of its products. The concessionaire may ensure the products for security. This substantiates that the appellants are not responsible for loss of any other property of the concessionaire. Hence security services are not provided by the appellant. d) The show cause notice does not allege that the facility of lounge, secretarial services or pantry is provided by t....
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....Commissioner of Central Excise, Ludhiana [ 2012 (25) STR 443 (Tri.-Del)] (iv) Twenty Twenty Media Pvt. Ltd. Vs. Commr. Of Service Tax, Delhi [2012 (27) STR 394 (Tri.-Del)] 4. On the other hand, Shri D.V.Nagvenkar, Ld. Additional Commissioner (AR) appearing on behalf of the revenue, reiterates the finding of the impugned order. He further submits that as per the concession agreement, the appellant granted right to display and sell the concessionaire's product from the store of the appellant for which the appellant provides huge infrastructure support for commerce of the concessionaire. Therefore the service is clearly of 'Business Support Service' and not of renting of immovable property. The consideration of such service is either by way of a minimum guarantee amount or as a percentage of the value of the goods sold which clearly indicates that there is no renting of any space. Merely because the appellant paid service tax w.e.f. 01/06/2007 under the category of Renting of immovable property, it can not be held that the classification of the service is settled. There was no occasion except in the present case to decide the legality of the classification in questio....
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....teed amount. It is also fact that the appellant does not make payment of so called sale of the goods by the concessionaire to the appellant immediately at the time of sale of the goods to the customer. The amount is retained for more than a month and thereafter the amount, after deduction of the appellant's consideration, is paid to the concessionaire. The appellant have practically no role in the sale of the goods except making documents such as invoice. The concessionaire only display and sell the goods. Therefore the appellant's receipt of consideration is only towards the facilities provided by the appellant to the concessionaire i.e. infrastructure, schemes, air-conditioned store, electricity, common security and most important is Shoppers Stop branded store. Therefore these activities/facilities provided by the appellant indeed provision of service. The appellant's contention is that the consideration is of trading margin only but in our view the service charges for the facilities provided by the appellant given a colour of trading margin. When the activity is in the nature of service, though the manner of consideration is in different form, it will be treated as ....
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....n the point that if at all the activity of the appellant is considered as service, it is correctly classifiable as Renting of immovable property service on the ground that appellant started paying service tax under the said head from 1-6-2007 and same was accepted by the Revenue. In this regard, we find that appellant suo moto classified the service under Renting of immovable property service and started paying service tax, since there is no revenue impact, no dispute arose from either side. In the present case the question of classification was raised by the Revenue by issuing show cause notice, question has to be answered as per the prevailing statutory provisions, therefore merely because the appellant from 1-6-2007 classified the service under Renting of immovable property service and department has not raised any objection, cannot become a law to construe that service involved in the present case is of 'Renting of immovable property service'. When the question was raised after examining facts and legal provision, the adjudicating authority held that service in the present case is correctly classifiable as 'Business Support Service' and we uphold the same view t....
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....alad (W), Munih 400 innalies seferred to as "the Company" (which pression shall unless it be repugnant to the content or meaning thereof ar doned mean and include is successors and assign of the One Past, And Private OR WRITING INSTRUMENTS PV LED and competered under the Indian Caspanu An 1956 doll, dental are, Pose 1, New Delia icinafter referred to as the mo I shall less the pugnant to the one or meaning theted are deemed to incasadh breng a telepels, sucus anal addicerators of list such surviving paste the Cute Past The pot above we referred to lividually as a party" and collectively as "the panties". d Mair Document 2 STOP WHEREAS: (a) The Company is an existing company ands in the bisness of operating and running of retail stores in India under the name Shoppers Stop", under which root they market and sell goods of vanous brands, vaneties and description. (b) (c) الي The Concessionaire is inter alia in the busues of sale of Writing Instrument under the Tede mare Parker and Waterman in India and has approached the Company for grant of a night to display and demonstrate gods, which goods ar....
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....e manner so required The Parties has agved to adhere to and to be bound by the General Terms and Conditions annexed hento Annexure A, which, shall be deemed to have been incomecated into the Agreement and made a part neres PERIOD This Agreement shall be valid for a penod of as mayouned in Column 4 Annexure B and commencing from the commencement date and shall expire on date mentioned in Column 5 of Annexure B unless otherwise terminated as provided in this Agreement Thereafter the Agreement shall be reviewed and may be renewed or mutually agreed terms and conditions between the parties. hereto. For the purpose of this Agreement the term 'commencement date shall, in respect of cach Display Counter, mean the respective dates mentioned in Annexure 'B' as the Commencement Dates CONSIDERATION The obligation to pay the percentage of sale shall be or a monthly basis and shall commence from the Commencement Date as pert Annexure B or the date on which each of the relevant Display Counters commence business, whichever is eather This Agreement including all Annexures (which shall be deemed to be a past and parcel of this Agreement) contains the complete ....
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....lue 3D of Clea 3m of Grass Sales Vahe 30% of sales Vih Valos Valu Due to have n common ned fo Apol Demed to han bes enced fom April 2001 Leemed to home bee semencuced fein 1+ Sped 2006 De med to leave bea menced form 2 in 2006 eemed to have been Apet 2006 open to Pune 11 Dyname tall, (VP) Scheme fro Shabillat $1 March 2007 31 March 2007 3 Marely of Grossas Deened to have been e-mmencal mi 31 Mar 2017 Ap Teemed to hate been commenced firms +Apel Deemed in have been manence forms Initials by Can essentere Nair Document 4 L $ 1 PRODUCTS TO BE SOLD Writing Instrument PARTICULARS OF EXPENSES 2. St. Particulars of Expenses No 2 ENERGY COST ELECTRICITY, AIR CONDITIONING Hockegang SECURITY CREDIT CARD COMMISSION STOP ANNEXURE "C 4 5 First Gen Rawand POINTS COST OF MAINTENANCE, SERVICES, E To be borne by Company Company Company Company The Concosmar Hudl have to bear the costs of the mulations of a telepone extension, as a whian required, and subject to pror approval from the Company a di....
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....of the invoic Price (as hereinafter defined) shall be dercmined on each of the sales effected theagh the applicable Store in the applicable month The amoure determased hol he aged better collectively the "Cross Income The the above shall be applied to each of the Product returns in the sad month. The seas arrived at shall be deducted from the Gre Income to arrive at the income earned by the Company from the Concessionaire in the on In the event the income is more than the minimum aanted income for the void store, then in such an event other amemts shall be payable In the event the income less than the minimum guanteed income for the said Sen, then in such the diffinice beoween the minimum guard income and the tal income dhall be payable in respect of the said Store for such month by the dense the if mawell before being mouth day essent splantations For the purpose of the above compotations (a) Lav Price shall mean the final sale price to the customer including all as present and future inchading but not limical to sales tax service tax of any other tax and levies thereon, and washout excling any discounts that wold leave to be offered....