2018 (5) TMI 1468 - AT - Service Tax

Business Auxiliary Services - commission received for canvassing advertisement - extended period of limitation - Held that The issue whether the services are subject to levy of service tax has been considered in the case of Malar Publications 2010 (11) TMI 155 - CESTAT, CHENNAI wherein it is held that the said activities fall within BAS. Time limitation - Held that - taking note of the fact that the issue was interpretational and there being no malafide established against the respondent, the order passed by the Commissioner (Appeals) is held to be legal and proper which requires no interference - appeal dismissed - decided against Revenue.

Summary

Issues:
Department appealing against Commissioner (Appeals) setting aside demand, interest, and penalties imposed on service tax for canvassing advertisements in publications.

Analysis:
The department contended that the service rendered by the respondent is similar to a commission agent and rightly classifiable under Business Auxiliary Service (BAS). Circulars clarified that consideration for canvassing services on a commission basis is subject to service tax. The department argued that the activities of canvassing advertisements fall under promotion or marketing of advertisement service, thus falling under BAS. Commissioner (Appeals) relied on a stay order to conclude that services are not subject to service tax, which the department argued was erroneous. The department pleaded for the impugned order to be set aside.

The respondent argued that confusion existed regarding the levy of service tax on retainer fee and commission received, citing circulars and a previous decision in favor of the assessee. The respondent contended that the issue was one of interpretation of law, and no malafide intent could be attributed to them. The respondent highlighted that a previous final order by the Tribunal set aside the demand on the ground of limitation for a subsequent period, which could be applicable to the present case.

The Tribunal considered the issue of service tax levy in a previous case involving Malar Publications, where it was held that activities fell within BAS. However, for the present case, the Tribunal noted that the demand was set aside for a subsequent period due to no suppression or malafide intent. The Tribunal acknowledged the interpretational nature of the issue and the circulars issued by the Board regarding service tax on advertisement services. Consequently, the Tribunal upheld the Commissioner (Appeals) order, finding it legal and proper, leading to the dismissal of the appeal filed by the Revenue department.