HEERA LAXMI AMUSEMENT PVT. LTD. Vs. COMMISSIONER OF C. EX., NAGPUR
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Heera Laxmi Amusement Pvt. Ltd.
Commissioner Of C. Ex., Nagpur
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P.R.CHANDRASEKHARAN,MEMBER (T) -
(1.)The appeal and stay application are directed against Order -in -Appeal No. PVR/94/NGP/2012 dated 26 -9 -2012 passed by the Commissioner of Central Excise & Service Tax (Appeals), Nagpur. The appellant, M/s. Heera Laxmi Amusement Pvt. Ltd., entered into an agreement with M/s. Amalgamated Bean Coffee Trading Co. Ltd., which envisages providing premises, infrastructure, electricity, water and manpower supply for the labour to conduct their business. As consideration for the services rendered, they were liable to get minimum guaranteed amount of Rs. 47,000/ - or 12% of the total monthly turnover, whichever is higher. The department was of the view that the services provided by the appellant is classifiable under 'Business Auxiliary Services' and accordingly confirmed a demand of Rs. 61,800/ - for the period 1 -4 -2009 to 31 -3 -2010. Aggrieved of the same, the appellant preferred an appeal before the lower appellate authority. The lower appellate authority directed the appellant to make a pre -deposit of Rs. 30,000/ - along with interest due vide order dated 17 -9 -2012 on or before 25 -9 -2012 and report compliance on 27 -9 -2012. Since the said direction was not complied with, the appeal was dismissed. Hence, the appellant is before us.
(2.)We have gone through the agreement which is termed as Franchise Agreement. As per the agreement, the appellant has rented out their premises to M/s. Amalgamated Bean Coffee Trading Co. Ltd. along with certain facilities, for which the appellant received the consideration. Prima facie the activity undertaken by the appellant is one of renting of immovable property and not Business Auxiliary Services. In view of the above, we are of the view that the matter has to go back to the lower appellate authority for reconsideration of the entire issue on merits without insisting on any pre -deposit. Thus, the appeal is allowed by way of remand. Stay application is also disposed of.
(Dictated and pronounced in Court)
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