2017 (12) TMI 23 - AT - Service Tax

Business Auxiliary Service - sale of space or time - advertising agency service - programme producer service - Held that - the said contractual arrangement is not connected to the sale transaction of banners made to M/s. Prabhakar Advertising Agency, Bhopal. The invoice clearly shows that the consideration is for sale of banners - tax liability on such sale transaction is not sustainable. There is no service provider service recipient relationship in such activity carried out by the Public Health Authorities as part of the Government function. There is no payment or arrangement with individual service recipient for any service. There can be no promotion of such service by the appellant to attract tax liability under Business Auxiliary Service - the service tax liability cannot be sustained on such activity carried out by the appellant with reference to arrangement with Public Health Authorities of the State. The demand of ₹ 17,44,951/- was made for the period 1.4.2006 to 31.03.2007 - Held that - Though the calculation might have been based on the documents submitted by the appellant, the basis of quantification with reference to specific invoices are to be made known to the appellant so that they can explain their side of the case. It is also seen that in respect of the sale of space or time, for the services rendered prior to 1.5.2006, also the demands have been made. This is not sustainable. Matter remanded for de novo consideration - appeal allowed by way of remand.

Summary

Issues:
1. Service tax liability under various categories such as "Business Auxiliary Service", "sale of space or time", "advertising agency service", and "programme producer service".
2. Denial of cenvat credit under Cenvat Credit Rules, 2004.
3. Imposition of penalties under Section 78 and Rule 15(3) of Cenvat Credit Rules, 2004.

Analysis:
1. The appeal challenged the order of the Commissioner of Central Excise, Bhopal, concerning service tax liability for the period 1.4.2003 to 31.03.2007 under different service categories. The Original Authority confirmed a service tax liability of &8377; 80,63,100/- and denied cenvat credit of &8377; 7,83,287/-. Penalties were imposed under relevant rules.

2. The appellant contested the service tax liability on various grounds. They argued that certain activities, like selling banners and renting hoardings, should not be taxed under "Business Auxiliary Service". They also disputed tax demands related to rural marketing activities and other services, claiming they had already paid taxes on actual receipt basis.

3. The Tribunal examined the transactions and found that some activities, like selling banners, were straightforward sales or leases with no service element. They ruled that services provided to Health Authorities or State Government for public health campaigns were not taxable as they were part of essential state functions and did not involve service provider-service recipient relationships.

4. The Tribunal noted that the Original Authority did not consider the appellant's claims to calculate tax liabilities based on actual receipts during the relevant period. They emphasized that tax demands should be based on actual receipts and not full billed amounts, especially when payments were not received during the specified period.

5. Additionally, the Tribunal found deficiencies in the quantification of tax liabilities for specific periods, as the basis of such calculations was not adequately explained to the appellant. They concluded that the impugned order was unsustainable due to factual analysis and legal principle application issues.

6. As a result, the Tribunal set aside the order and remanded the matter back to the Original Authority for a fresh decision, allowing the appellant an opportunity to present their case properly. All issues were kept open for reconsideration, and the appeal was allowed by way of remand.