Service Tax Appeal No.10075 of 2016
(Arising out of OIO-AHM-SVTAX-000-COM-003-15-16 dated 16/10/2015 passed by
Commissioner of Service Tax-SERVICE TAX – AHMEDABAD)
Triton Communications Pvt Ltd
VERSUS
C.S.T.-Service Tax – Ahmedabad
With
Service Tax Appeal No.10885 of 2016
(Arising out of OIO-AHM-SVTAX-000-COM-20-15-16 dated 10/02/2016 passed by
Commissioner of Service Tax-SERVICE TAX – AHMEDABAD)
Triton Communications Pvt Ltd
VERSUS
C.S.T.-Service Tax – Ahmedabad
And
Service Tax Appeal No.11252 of 2018
(Arising out of OIO-AHM-EXCUS-001-COM-013-17-18 dated 16/02/2018 passed by Principle
Commissioner Customs, Excise and Service Tax-SERVICE TAX – AHMEDABAD)
Triton Communications Pvt Ltd
VERSUS
C.S.T.-Service Tax – Ahmedabad
APPEARANCE:
Shri Jeet B. Karia & Shri Rishi Murarka, (Advocates) for the Appellant
Shri Tara Prakash, Deputy Commissioner (AR) for the Respondent
CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR
HON’BLE MEMBER (TECHNICAL), MR. RAJU
Final Order No. A/ 10243-10245 /2023
DATE OF HEARING: 20.01.2023
DATE OF DECISION: 07.02.2023
RAMESH NAIR
The common facts in all the appeals is that electronic media raised
bills to M/s. Triton Communication Pvt. Ltd. (TCPL) on the time slots sold to
them and charged them service tax under the category of Broadcasting
Services, the appellant further issued bills to their clients. The bills issued by
them included the gross value of Broadcasting services and the service tax
charged by the electronic media company namely M/s. Sahara (India) Pvt.
Ltd. Thus, the appellant collected full transaction value on these service fees
including broadcasting agency charges as well as service tax on the said
charges from their clients. The appellant have passed on the service tax
burden borne by the electronic media to their client.
- The case of the department is that since the appellant have collected
the service tax from their client by raising the bills, the same service tax was
liable to be recovered under Section 73(A) of the Finance Act, 1994
accordingly, the show cause notices in the present cases proposed demand
under Section 73(A) which was culminated into adjudication order wherein,
the demand was confirmed therefore, the present appeals filed by the
appellant.
- Shri Rishi Murarka and Shri Jeet Karia, learned counsels appearing on
behalf of the appellant at the outset submits that all the show cause notices
in the present appeals were issued in pursuance to the Order-in-Original
No.AHM-SVTAX-000-COM-14-15 dated 07.08.2014 passed by the
Commissioner of Central Excise & Service Tax, Ahmedabad. It is his
submission that the order dated 07.08.2014 was set aside by allowing the
appeal of the present appellant by this tribunal vide Final Order No.
A/11332/2022 dated 01.11.2022. Since the issue has been settled by this
tribunal order (supra) all the cases for which the foundation is the case
which was decided by tribunal, hence the demand is not sustainable.
- Shri Tara Prakash, learned Deputy Commissioner (AR) appearing on
behalf of the revenue reiterates the finding of the impugned order.
- We have carefully considered the submissions made by both the sides
and perused the records. We find that the facts which is not under dispute is
that the electronic media company namely M/s. Sahara (India) Pvt. Ltd are
raising bill for broadcasting service to the appellant and appellant in turn
without providing any other service recovering the amount from their client
along with service tax which was paid by electronic media. The demand in
the present case was raised under Section 73(A) on the ground that the
appellant have collected the service tax from their client and not deposited
to the Government Exchequer. There is no dispute that the service tax
amount collected by the appellant from their client already stand deposited
to the Government Exchequer by the electronic media company namely M/s.
Sahara (India) Pvt. Ltd therefore, the provision of Section 73(A) cannot be
invoked in the facts of the present case. This tribunal in the appellant’s own
case against the Order-In-Original dated 07.08.2014 which is genesis of
these cases set aside the demand. The said order is reproduced below:-
- We have heard both the sides and perused the records. We find that the
short issue involved in the present appeal is as to whether the amount of
service tax collected by the appellant related to the broadcasting service
from their customers is required to be deposited with the department in
terms of provisions of Section 73A of Finance Act, 1994 whereas service
tax on “broadcasting service”, which they have collected passed on the
entire amount i.e. value of the broadcasting service and service tax
thereon to the Broadcasters who had undisputedly deposited such amount
of service tax with the Government for discharging their liability of Service
tax under the category of broadcasting services.
4.1 The adjudicating authority has totally misconceived the provisions of
Section 73A of the Finance Act, 1994 which reads as under :-
“73A. Service Tax collected from any person to be deposited with Central
Government. – (1) Any person who is liable to pay service tax under the
provisions of this Chapter or the rules made thereunder, and has collected
any amount in excess of the service tax assessed or determined and paid
on any taxable service under the provisions of this Chapter or the rules
made thereunder from the recipient of taxable service in any manner as
representing service tax, shall forthwith pay the amount so collected to the
credit of the Central Government. (2) Where any person who has collected
any amount, which is not required to be collected, from any other person,
in any manner as representing service tax, such person shall forthwith pay
the amount so collected to the credit of the Central Government.”
It can be seen from the above reproduced provisions that the said
provisions of Section73A of the Act are applicable where the amount of
service tax has been collected and retained by the assessee. In the
present case, it is admitted facts that that no service tax was chargeable
on the activity of the appellant, since the activity of Appellant do not
qualify them as a broadcasting agency nor can be classified under
Broadcasting Services. It is also true that Section73A (2) which mandated
that any person who collects any amount as representing service tax to
deposit it with the Government also. In the present case demand of
service tax under the provisions of section 73A of the finance Act
confirmed by the Ld. Commissioner without discussing the activity of
appellant and without going into the facts of the case legally not correct.
We have gone through the activity of appellant and bills of the appellant
and find that in addition to the service of advertising agency, the appellant
has been acting as a mediator/ facilitator between, the broadcasting
companies and the clients. In this activity, the clients /customers
approaches the appellant for marketing of their products/ services in
various medium like Electronics media, Print Media, etc. The Broadcasters
sell time slot in the Electronics Media to the clients/ customers, but the
payment of such time slot is routed through the appellant i.e. advertising
agency. The Broadcaster issues an invoices to the appellant with the
details of the clients whose products/ services were advertised in the
electronic media, and in turn, the appellant issues a reimbursement bill to
the client which is always corresponding the bills of the broadcasting
company. In the said bills also the details of program and the product/
service of the clients/ customers and service tax amount are shown. The
clients / customers pays the billed amount to the appellant including the
service tax amount and the same amount without any deduction or
retention is passed on the broadcasting company. The Broadcasting
companies deposited such amount of service tax with the Government for
discharging their liabilities of service tax under the category of
broadcasting service. Clearly, the role in the entire transaction of appellant
is just like an mediator who collects money from the clients on behalf of
the broadcasting company. It is also admitted fact in the present case that
the retainership fees or commission income separately charged and
collected from the clients, appellant paid the service tax under the
advertising services. The said undisputed facts clearly established that the
present one is not a case where the appellant had collected any amount as
service tax and retained the same by not depositing the same with the
Government exchequer. We find that the Appellant has collected the
service tax from the clients on behalf of Broadcasters in relations to
service of “Broadcasting services” and transferred the said service tax
amount to Broadcaster for discharging service tax liability on “Broadcasting
services”. In the present matter revenue nowhere disputed the facts that
Broadcaster had paid the said disputed service tax to Government.
4.2 When there is no dispute at all on the facts that the appellant has not
retained the amount collected from the client as service tax and when
there is no dispute at all on the facts that the appellant has passed on
such amount entirely to the broadcasters who have paid such amount to
the Government and since no amount retained by the Appellant in the
present case, demand of service tax by applying the provisions of Section
73A of the Finance Act is not correct. The transaction of appellant not
covered under the provisions of Section 73A of the Finance Act. Therefore,
we find that the impugned order confirming demand under Section 73A of
the Finance Act are not sustainable and needs to be set aside. 4.3 Without
prejudice, It is also seen that the amount received from the
clients/customers have been subjected to Service Tax at the hands of the
Broadcasters. The revenue also admitted that appellant do not qualify as
Broadcasting agency. Hence, on the Broadcasting Service actual liability of
payment of services tax is on the Broadcasting company who provide the
said services to the clients. In the present matter Broadcasters already
deposited the service tax amount to government as allegedly collected by
the appellant from clients against the Broadcasting Services and demand
of service tax again from the appellant would amount to double payment.
However, the Broadcasters having already paid such collected amount to
the government, the appellant cannot be asked to deposit the same again
with the Government exchequer. It is our considered view, that once tax
has already been paid on the services, it was not open to the Department
to confirm the same against the appellant, in respect of the same services.
Accordingly, the impugned order liable to be set aside.Since the entire
case is being decided on merit, we do not go into limitation and time bar
issues raised by the Ld. Counsel. 5. In view of above discussion and
finding, we hold that the impugned order is required to be set aside and
we do so. The appeal is allowed with consequential reliefs, if any, in
accordance with law.
As pointed out by the learned counsel, where in the present case the show
cause notices were issued in pursuance to the order dated 07.08.2014 by
the Commissioner of Central Excise & Service Tax, Ahmedabad therefore
there is no change in facts and circumstances of these cases from the case
already decided by the tribunal (supra) therefore, following this tribunal’s
decision in the above case, the demand in all the present appeals are not
sustainable.
- Accordingly, the impugned orders are set aside. Appeals are allowed.
(Pronounced in the open court on 07.02.2023 )
(RAMESH NAIR)
MEMBER (JUDICIAL)
(RAJU)
MEMBER (TECHNICAL)
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