Custom, Excise & Service Tax Tribunal
India Cements Limites vs Commissioner Of Gst&Cce (Chennai ... on 21 March, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL, CHENNAI
Service Tax Appeal No.41526 of 2013
(Arising out of Order in Original No. 9/2013-ST dated 31.3.2013
passed by the Commissioner of Central Excise, Chennai)
With
Service Tax Appeal No.42271 of 2014
(Arising out of Order in Original No. 5/2014 dated 30.6.2014 passed
by the Commissioner of Central Excise, Chennai)
With
Service Tax Appeal No. 41358/2018
(Arising out of Order in Appeal No. 61/2018 (CTA-II) dated
28.2.2018 passed by the Commissioner of Central Excise (Appeals
- II), Chennai)
And
Service Tax Appeal Nos. 41794 to 41796/2018
(Arising out of Order in Original No. 20 to 22/2017 (R) dated
28.12.2017 passed by the Commissioner of GST and Central Excise,
Chennai Outer)
M/s. India Cements Ltd. Appellant
Coromandel Towers,
93, Santhome High Road
Kapagambal Avenue
Chennai - 600 028.
Vs.
Commissioner of GST & Central Excise Respondent
Chennai North Commissionerate 26/1, Mahatma Gandhi Road Nungambakkam, Chennai - 600 034.
APPEARANCE:
Smt. Radhika Chandrasekar, Advocate for the Appellant Shri R. Rajaraman, AC (AR) for the Respondent CORAM Hon'ble Shri P. Dinesha, Member (Judicial) Hon'ble Shri M. Ajit Kumar, Member (Technical) Final Order Nos. 40318 - 40323/2024 2 ST/41526/2013, ST/42271/2014, ST/41358/2018 and ST/41794 to 41796/2018.
Date of Hearing : 08.02.2024 Date of Decision: 21.03.2024 Per P. Dinesha, These appeals are filed against the above Orders in Original. After hearing both sides and after going through the records, we find that since common issues are involved in all these cases, all the case are grouped together for common disposal.
2. Periods of dispute are as under:-
S. No. Appeal No. Period of dispute 1. ST/41526/2013 2010 - 2011 2. ST/42271/2014 April 2011 to March 2012 3. ST/41358/2018 April 2012 to June 2012 4. ST/41794/2018 July 2012 to March 2013 5. ST/41795/2018 April 2013 to March 2014 6. ST/41796/2018 April 2014 to March 2015 3. Heard Smt. Radhika Chandrasekar for the
appellant and Shri R. Rajaraman, learned Assistant Commissioner (AR) for the Revenue.
4. After hearing both sides and after perusing the impugned orders, we find that common issues arises for our consideration:-
(i) Whether the appellant rendered Business Support Services to BCCI - IPL.
(ii) Whether the consideration paid to players could be considered as payment towards brand promotion services, requiring reversal in terms of Rule 6(3) of CENVAT Credit Rules, 2004.3
ST/41526/2013, ST/42271/2014, ST/41358/2018 and ST/41794 to 41796/2018.
(iii) Demand of service tax on sale of merchandise
(iv) Demand of service tax on payments made to foreign players and staff
(v) Demand of service tax on receipts from BCCI merchandise sale and import of service
5. Learned counsel would submit, at the outset, that the issues are no more res integra as they have been settled in favour of the appellant by this very Bench in the appellant's own case for earlier periods wherein, this Bench had followed the orders of other coordinate Benches in the cases of KPH Dream Cricket Pvt. Ltd. Vs. CCE - (2020) 34 GSTL 456, Jaipur IPL Cricket Pvt. Ltd. Vs. Principal Commissioner of Service Tax, vide Final Order No. A/85993 & 85994/2023 dated 19.6.2023 and M/s. Knight Riders Sports Pvt. Ltd. Vs. Principal Commissioner of Service Tax vide Final Order No. A/86006 & 86007/2023 dated 26.6.2023.
6. Per contra, the learned Assistant Commissioner Shri R. Rajaraman relied on the findings of the adjudicating authority.
7. We have carefully gone through the documents placed on record and we have also gone through the Final Order No. 40655 & 40656/2023 dated 4.8.2023 of this very Bench in the appellant's own case for different periods wherein the coordinate Bench has granted relief 4 ST/41526/2013, ST/42271/2014, ST/41358/2018 and ST/41794 to 41796/2018.
to the appellant by following the orders of other coordinate Benches referred supra in the following words:-
"19.1 From the above decision, it can be seen that the income received by the appellant from Central rights is nothing but revenue sharing and not consideration for services provided to BCCI- IPL. Following the decision in the case of KPH Dream Cricket Pvt. Ltd. (supra) and M/s. Jaipur IPL Cricket Pvt. Ltd. (supra), we are of the view that the demand under this head cannot sustain andrequires to be set aside, which we hereby do.
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22. The fourth issue is with regard to the demand raised alleging that the appellant is liable to pay Service Tax under reverse charge mechanism on the payments made to foreign players. The very same issue was considered by the Tribunal in the case of KPH Dream Cricket Pvt. Ltd. (supra). The facts and issue being identical, the decision is applicable in the present case also. Following the same, we are of the view that the demand cannot sustain and requires to be set aside, which we hereby do. Relevant paragraph reads as under:-
10. The Revenue sought to demand service tax from the appellant-assessee for the fee paid to overseas players under the category of Business Support Service.
11. The case of the appellant-assessee is that they are under the obligation to raise a team of 16 players for which the appellant-assessee entered into an agreement with various players including players of foreign origin. The agreement specified that the players were engaged as professional cricketers and will be provided with player fee. The players were given a consolidated consideration for fulfilling all their obligations under the agreement, which included playing cricket and participating in league activities relating to promotional events. The players spent majority of their time playing cricket which is not taxable service. If a player is unable to play matches for the team, then he is entitled to retain only 10% of the player fee which shows that the consideration received by a player was essentially towards playing matches only.5
ST/41526/2013, ST/42271/2014, ST/41358/2018 and ST/41794 to 41796/2018.
12. It is his submission that the promotional activities were ancillary to the main activity of playing cricket. Therefore, no service tax is payable. To support his contention, he relied upon the decision of Hon‟ble Calcutta High Court in the case of Sourav Ganguly v. Union of India - 2016 (43) S.T.R. 482 (Cal.) and decision of this Tribunal in the case of Shri Karn Sharma v. CCE & ST - 2018 (4) TMI 111- CESTAT-Allahabad and C.E., C & CGT v. Piyush Chawla - 2018 (7) TMI 1009- CESTAT-Delhi.
13. We find that the main activity of theappellant- assessee is to play cricket apart from that, the appellant-assessee are engaged in thepromotional activities which are ancillary to themain activity of playing cricket. In the case of Sourav Ganguly (supra), Hon‟ble Calcutta High Court has observed as under :
"69. Further, I 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 independent 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 as business support service. He was simply a purchased member of a team serving and performing under KKR and was not providing any service to KKR asan individual."
14. We further find that the issue has been examined by this Tribunal in the case of Umesh Yadav v. CCE - 2018 (2) TMI 136-CESTAT-Mumbai, wherein this Tribunal has observed as under :-
"6. After considering the submissions of both the parties and on perusal of the material on record, we find that the show cause notice was issuedproposing to demand service tax under business support service and the original authority has confirmed the demand under the said category whereas at the appellate stage, the Commissioner (Appeals) has 6 ST/41526/2013, ST/42271/2014, ST/41358/2018 and ST/41794 to 41796/2018.
changed the classification from business support service to brand promotion service suo motu and unilaterally which is not permitted under law. Further, we find that thisissue has been settled in favour of the assessee by various decisions relied upon by the appellant- assessee cited supra. Therefore, by following the ratio of the said decisions, we are of the consideredopinion that the impugned order passed by the Commissioner (Appeals) going beyond the showcause notice is not sustainable in law and,therefore, we set aside the impugned order and allow the appeal of the appellant-assessee. We also find that the department is also holding the view that the appellant is not liable to tax under the category of brand promotion service. Consequently, we do not find any merit in the department‟s appeal in view of the various decisions cited supra."
15. Therefore, we hold that on player's fee, no service tax is payable by the appellant- assessee and in Appeal No. ST/597/2012, the Commissioner has rightly been dropped the demand of service tax on player‟s fee."
23. From the foregoing, we have no hesitation to conclude that the demand, interest and penalties cannot sustain. The impugned orders are set aside; the appeals are allowed with consequential relief.
(emphasis added by us for clarity)
8. From the above, we find that the issues at Sl. No.
(i), (ii) and (iv) are apparently decided in favour of the appellant in their own case although for different periods and hence, following the same we set aside the demand insofar as these two issues are concerned.
9. Insofar as sale of merchandise is concerned, it is the case of the appellant that there was no service but only sale, which is not amenable to service tax. We find from the impugned order that there is no dispute that the demand pertains to the sale of merchandise and hence, the same can never be held to be 'service' by any 7 ST/41526/2013, ST/42271/2014, ST/41358/2018 and ST/41794 to 41796/2018.
stretch of imagination. Hence, we set aside the demand as far as this issue is concerned and allow the appeal to this extent.
10. Resultantly, the impugned orders are set aside and the appeals allowed with consequential relief, if any, as per law.
(Pronounced in open court on 21.03.2024) (M. AJIT KUMAR) (P. DINESHA) Member (Technical) Member (Judicial) Rex