2013 (3) TMI 105 - AT - Service Tax

Advertisement agency services - The dispute is regarding the payments received by applicant for media cost. For example out of Rs. 100/- billed to the client, Rs. 85/- is as media cost and Rs. 15/- as commission (which is taxable). Out of Rs. 85/- only Rs. 80/- is actually paid to the media. - held that - applicant is liable to pay service tax on the amount which they have retained with themselves i.e. the amount received from the client less amount paid to the media. Same view has been expressed by the Board s Circular which relied upon by the learned A.R. - stay granted subject to deposit of 25%.

Summary

Issues:
Service tax demand on write-backs in advertisement agency services, service tax demand on volume discounts received in business auxiliary services, waiver of pre-deposit of impugned demands.

Analysis:
1. The case involved a service tax demand of Rs. 2,21,43,181/- against the applicants for write-backs and volume discounts received under the categories of 'advertisement agency services.' The dispute was regarding payments received for media costs, where the applicant retained some amount with them, leading to a service tax demand of Rs. 1,36,84,668/- for write-backs and Rs. 84,58,513/- for volume discounts.

2. The applicant argued that the retained amount should not be taxable as it was due to errors or disputes in payments to the media. The applicant primarily engaged in advertising agency services and discharged service tax liability on the commission received. They sought waiver of pre-deposit, citing a judgment of the Bombay High Court and contending that most demands were time-barred.

3. The respondent, however, relied on a Board Circular stating that service tax should be computed on the gross amount charged by the advertising agency less the amount paid to the media. The respondent opposed the waiver, emphasizing that the applicant retained more amounts than what was used to discharge service tax liability, making them liable to pay service tax.

4. After hearing both sides, the Tribunal found the applicant liable to pay service tax on the amount retained from clients, less the amount paid to the media. The Tribunal noted that the applicant failed to justify a 100% waiver of pre-deposit for the demand related to write-backs, directing a pre-deposit of 25% of Rs. 1,36,84,668/-. However, the Tribunal waived the requirement of pre-deposit for the demand related to volume discounts, as the facts were similar to a previous case where unconditional waiver was granted.

5. The Tribunal highlighted that the advertising agency did not have the liberty to decide the advertiser, similar to the circumstances in a previous case where unconditional waiver was granted. The stay application was disposed of, with compliance to be reported by a specified date.