Page 166 - GSTL_2nd July 2020 _Vol 38_Part 1

84 GST LAW TIMES [ Vol. 38
(v) The appellant is entitled to the same relief as was granted to other
similarly placed assessees. Elaborating this submission, Learned
Counsel pointed out that the Commissioner (Appeals) by the order
dated 25 October, 2012, which attained finality and is in regard to a
similar issue, set aside the order of the adjudicating authority that
required the appellant therein to pay Service Tax on “business aux-
iliary service” as it resulted in double taxation. Learned Counsel al-
so placed reliance upon the judgment of the Supreme Court in Dam-
odar J. Malpani v. Collector of Central Excise [2002 (146) E.L.T. 483
(S.C.)].
10. Learned Authorized Representative of the Department supported
the impugned order and submitted that the Commissioner committed no illegali-
ty in confirming the demand. Learned Representative pointed out that the appel-
lant was providing a separate “business auxiliary service” for which Service Tax
had been demanded and confirmed. Learned Authorized Representative also
submitted that the appellant was not entitled to claim benefit of the Notification
dated 10 September, 2004, nor could it be said to be a case of revenue sharing.
11. The submissions advanced by the Learned Counsel for the appel-
lant as also the Authorized Representative of the Department have been consid-
ered.
12. To appreciate the rival contentions, it will be appropriate at this
stage to refer to the agreement dated 15 March, 2007 entered into between Career
Launcher and the appellant. The agreement grants licence to the appellant by
granting a right to operate the professional learning centre. The fee to be charged
from the students includes tuition fees, advances and is collected by the appel-
lant on behalf of the Career Launcher and thereafter deposited in the bank ac-
count of Career Launcher. The appellant, however, has to pay recurring franchise
fee to Career Launcher at the rate of 25% of the net revenue. Career Launcher
had opted for central registration and was paying Service Tax on the “commer-
cial training and coaching service” provided by it on the entire amount deposited
in its bank account by appellant. The central registration included the address of
the appellant from where the coaching and training was provided to the stu-
dents.
13. It is in this background that the allegations in the show cause notice
that was issued to the appellant need to be examined. The show cause notice
mentions that though Career Launcher was engaged in providing “commercial
training and coaching service”, but the appellant was also providing “business
auxiliary service” for which it received payment from Career Launcher. Howev-
er, it neither obtained Service Tax registration nor it paid Service Tax.
14. The contention of Learned Counsel for the appellant is that there
was no relationship of a service provider and service recipient between the
appellant and Career Launcher because the revenue was on a sharing model and,
therefore, no service much less “business auxiliary service” was provided by the
appellant to Career Launcher. This contention of the appellant has not been ac-
cepted by the adjudicating authority and the portion of the order dealing with
this aspect has been reproduced above. A perusal of the said paragraphs indicate
that the adjudicating authority found as a fact that both Career Launcher and the

GST LAW TIMES  2nd July 2020  166