Triton Communications Pvt Ltd VERSUS C.S.T.-Service Tax – Ahmedabad

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.

  1. 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.

  1. 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.

  1. Shri Tara Prakash, learned Deputy Commissioner (AR) appearing on

behalf of the revenue reiterates the finding of the impugned order.

  1. 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:-

  1. 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.

  1. 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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