Page 188 - ELT_3rd_1st May 2020_Vol 372_Part

410 EXCISE LAW TIMES [ Vol. 372

submits that as both agreements with SMU and the parties running Learning
Centres did not involve any kind of “franchise” but were in the nature of “auxil-
iary education services”; the Appellant entertained a bona fide belief that they
were not liable for payment of Service Tax under the category of “franchise ser-
vice” as defined in Section 65(105)(zze) read with Section 65(47) & (48) of the Act;
it was understood by the Appellant that VSAT equipment hire charges related to
Chattel hire; the same was a transfer of property and right to use falling within
the ambit of the definition of sale in terms of Article 366 of the Constitution and
not a service as contemplated by law during the relevant period.
4. Learned Counsel submits that the Department is not at all justified in
invoking the extended period of limitation since the Department has issued two
SCNs for the very same period based on very same relied upon documents;
When all facts were on record and entirely within the knowledge of the depart-
ment based on which it had issued an earlier SCN, the second show cause notice
could not have alleged suppression of facts or any ingredients envisaged in the
proviso to Section 73 to saddle the appellants with charges of quasi-criminal na-
ture once again; the demand is wholly bereft of legality and barred by limitation;
this solitary ground is by itself is meritorious enough to set aside the impugned
order which is totally bereft of merit, hit by the bar of limitation. He places reli-
ance on the following.
(i) Nizam Sugar Factory v. CCE, 2006 (197) E.L.T 465 (S.C.)
(ii) ECE Industries Ltd. v. CCE, 2004 (164) E.L.T. 236 (S.C.)
(iii) Hyderabad Polymers (P) Ltd. v. CCE, 2004 (166) E.L.T. 151 (S.C.)
(iv) FJA v. CCE, 2003 (153) E.L.T. 1J. (S.C.)
(v) CCE v. Rivaa Textiles Inds. Ltd. 2015 (322) E.L.T. 90 (Guj.)
(vi) Paro Food Products v. CCE, 2005 (184) E.L.T. 50 (Tr-Bang.).
5. The Learned Senior Counsel submits that the appellant registered
with the Service Tax Department during the year 2004 itself; since then there has
been protracted correspondence with the Department on several issues; Appel-
lant has also been subjected to periodical visits; they have been subjected to ad-
judication proceedings on several issues in the past; hence, all the facts and cir-
cumstances are well within the knowledge of the Department; besides, all the
transactions are duly recorded in the books of account maintained by the Appel-
lant; there is no suppression of anything from the books; there is no willful sup-
pression of facts on the part of the Appellant in any manner. He relies on the ra-
tion of the decision in Continental Foundation Joint Venture v. CCE, 2007 (216)
E.L.T. 177 (S.C.).
6. Learned Senior Counsel submits that the Respondent has shown su-
pine indifference to the pleas advanced by the Appellant and made out specious
grounds to fasten an illegal levy without any justification either on merit or on
limitation; the order has been passed without application of mind; the order vio-
lates natural justice as it is not demonstrated that justice has not only been done
but has been manifestly and undoubtedly seen to be done from the record; He
submits that the demands confirmed are not tenable on merits also for the fol-
lowing reasons -
(a) There was no “franchise service” rendered by the Appellant either
to Sikkim Manipal University or to parties of Learning Centres;
MOA dated 22-11-2004 with Sikkim Manipal University was for
EXCISE LAW TIMES  1st May 2020  188