Custom, Excise & Service Tax Tribunal
Faiz Fazal vs Commissioner Of Central Excise, Nagpur on 31 January, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. ST/86456/14-Mum (Arising out of Order-in-Appeal No. NGP/EXCUS/000/ APPL/049/13-14 dated 27.3.2014 passed by Commissioner of Central Excise & Customs (Appeals), Nagpur) Faiz Fazal Appellant Vs. Commissioner of Central Excise, Nagpur Respondent
Appearance:
Shri Bharat Raichandani, Advocate, for appellant Shri V.R. Reddy, Assistant Commissioner (AR), for respondent CORAM:
Honble Mr. S.S. Garg, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 30.1.2018 Date of Decision: 31.1.2018 ORDER NO Per: S.S. Garg The present appeal is directed against the impugned order dated 27.3.2014 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has upheld the order-in-original and rejected the appeal of the appellant.
2. Briefly the facts of the present case are that the appellant is a cricketer and represented Rajasthan Royals, a franchisee owned by M/s. Jaipur Indian Premier League Cricket Pvt. Ltd., Mumbai in the Indian Premier League. Intelligence was gathered that the appellant was rendering business support services to Jaipur Indian Premier League Cricket Pvt. Ltd. and was not discharging his service tax liability on the retainer fee received by him from Jaipur Indian Premier League Cricket Pvt. Ltd. Therefore the officers of Service Tax Department, Nagpur conducted an investigation in which it was noticed that Jaipur Indian Premier League Cricket Pvt. Ltd. is the owner of Rajasthan Royals. The Board for Control of Cricket in India is the apex governing body for cricket in India and the Board in order to pursue its commercial activities proposed forming a separate sub-committee unit/working council known as Indian Premier League for conducting Twenty 20 cricket competition. It further appeared that the Indian Premier League made available a tender document called the franchisee tender document inviting franchisees and based on bidding, the Board finalized approximately 9 numbers of franchisee, which included Jaipur Indian Premier League Cricket Pvt. Ltd., Mumbai who selected its franchisee name as Rajasthan Royals. Appellant is one of the players who has been selected to play for Rajasthan Royals. The department took a view that the appellant is rendering taxable services to the franchisee and is not paying the service tax. Therefore the department asked the appellant to furnish the details. The appellant submitted the copies of income-tax returns for the assessment years 2009-10, 2010-11 and 2011-12 along with TDS details. After scrutiny of the documents and the agreements between the appellant and its franchisee, the department came to the conclusion that the appellant has failed to pay the service tax on the franchisee fee received by him. On these allegations, a show cause notice was issued proposing to demand the payment of service tax. After following due process, the demand was confirmed and aggrieved by the said order-in-original, the appellant filed appeal before the Commissioner (Appeals) who rejected the appeal. Hence the present appeal.
3. Heard both the parties and perused the records.
4. Learned counsel submitted that the impugned order is not sustainable in law as the same has been passed without appreciating the facts on the law. He further submitted that the impugned order is contrary to the binding precedent on the same issue. It is his further submission that the impugned order is non-speaking and it has not considered all the submissions of the appellant and has been passed in gross violation of the principles of natural justice. He further submitted that the Commissioner (Appeals) has travelled beyond the show cause notice and has confirmed the demand of service tax under brand promotion service as defined under Finance Act, 1994 whereas this was never the case of the department. The department proposed to demand service tax under business support service and the adjudicating authority has also confirmed the 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:-
(i) Swapnil Asnodkar vs. CCE, Goa 2018-TIOL-92-CESTAT-MUM;
(ii) Warner Hindustan Ltd. vs. CCE, Hyderabad 1999 (113) ELT 24;
(iii) CCE, Goa vs. R.K. Construction 2016 (41) STR 879;
(iv) Balaji Contractor vs. CCE, Jaipur-II 2017 (52) STR 259;
(v) 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 promotion service and the agreement between the appellant-assessee and the franchisee has been misconstrued by the department.
5. On the other hand, learned AR reiterated the findings of the impugned order.
6. After considering the submissions of both parties and perusal of the material on record, we find that the show cause notice was issued proposing 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 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 this issue 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 considered opinion that the impugned order passed by the Commissioner (Appeals) going beyond the show cause notice is not sustainable in law and therefore, we set aside the impugned order and allow the appeal of the appellant-assessee.
(Pronounced in court on 31.1.2018) (C.J. Mathew) Member (Technical) (S.S. Garg) Member (Judicial) tvu 1 6 ST/86456/14