Page 161 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] NIRAJ PRASAD v. COMMISSIONER OF C. EX. & S.T., KANPUR 79
set aside - Once Department permitted said order to attain finality, urging that
assessee required to pay Service Tax on “business auxiliary service”, cannot be
permitted - Sections 65(19) and 65(105)(zzb) of Finance Act, 1994. [paras 33, 34,
35, 36, 37]
Appeal allowed
CASES CITED
Commissioner v. Mitcon Consultancy & Engg. Services Ltd.
— 2017 (4) G.S.T.L. 167 (Tribunal) — Referred ............................................................................ [Para 9]
Commissioner v. Mormugao Port Trust — 2017 (48) S.T.R. 69 (Tribunal) — Relied on .......... [Paras 9, 15]
Commissioner v. Mormugao Port Trust — 2018 (19) G.S.T.L. J118 (S.C.) — Referred ............. [Paras 9, 16]
Cricket Club of India v. Commissioner — 2015 (40) S.T.R. 973 (Tribunal) — Referred ................ [Para 15]
Damodar J. Malpani v. Collector — 2002 (146) E.L.T. 483 (S.C.) — Followed ........................... [Paras 9, 37]
Samadhan Systems Pvt. Ltd. v. Commissioner — Final Order No. 50264/2018, dated 9-1-2018
by CESTAT, New Delhi — Relied on..................................................................................... [Paras 9, 32]
Sunbeam Infocomm Pvt. Ltd. v Commissioner
— 2015 (37) S.T.R. 129 (Tribunal) — Followed ............................................................... [Paras 9, 28, 29]
REPRESENTED BY : Shri B.L. Narasimhan, Advocate, for the Appellant.
Shri P.K. Singh, Authorised Representative, for the
Respondent.
[Order per : Justice Dilip Gupta, President]. - This appeal has been filed
to assail the order dated 28 August, 2012 passed by the Commissioner, Central
Excise & Service Tax, Kanpur (The Commissioner) by which the demand of Ser-
vice Tax has been confirmed. The Commissioner has also confirmed the demand
for payment of interest and penalty.
2. The appellant entered into agreement dated 15 March, 2007 with Ca-
reer Launcher (India) Limited (Career Launcher) which was engaged in provid-
ing commercial training and coaching services through its numerous centres lo-
cated across the country. Shri Niraj Prasad (The appellant) entered into a License
agreement with Career Launcher under which the appellant was granted the
right to use the trademark, logo and proprietary system developed by Career
Launcher regarding various courses. According to the appellant, the agreement
between the appellant and Career Launcher is on a principal to principal basis
with no element of agency and the appellant functions in the capacity of an in-
dependent contractor where the appellant is responsible for providing the cost of
the equipments, premises, furniture and allied articles for the recruitment and
selection of staff and the faculty. Further, there is no element of any provision of
service as both are striving towards a common goal.
3. As per the terms of the agreement, the appellant and Career Launch-
er share the revenues collected from the students in the ratio of 75:25%. The ap-
pellant deposits the entire fee with Career Launcher and subsequently the Career
Launcher transfers back 75% of the amount to the appellant. The relevant provi-
sions of the agreement are reproduced below :-
3.8 Exclusion of Licensor’s other Trade Marks. Trade Names, Designs,
Copyrights, Goodwill etc.
This Agreement shall permit the Licensee to use the Licensor’s
Trade Mark ‘CAREER. LAUNCHER INDIA LTD.’ and Trade Name
‘CAREER LAUNCHER INDIA LTD.’ only in relation to the opera-
tion of the Professional Learning Centers by way of permitted use.
GST LAW TIMES  2nd July 2020  161