2018 (6) TMI 928 - AT - Service Tax

Classification of services - sub-contract - advertising agency service or not - whether the proposed classification under which the tax was sought to be levied is applicable to the activities of the appellant? - Held that - It is seen from the records that the appellant had registered themselves under Service Tax Rules, 1994 as provider of sound recording service. However, that by itself is not sufficient to operate as a conclusive ground of taxability. Levy under Finance Act, 1994 is not on the persona but on the activity; neither registration nor wherewithal for rendering the service can substitute for classifying the activity within the definition of the service. There is no dispute that the appellant produces an entire program which is then submitted to the client for further use. These may well be in the nature of sub-contract by an advertising agency but is, yet, an independent one. There is no proposal to tax the activity as provision of advertising agency service ; the appellant is not required to choose between alternate classification as that is the responsibility of the tax collector. Fitment within an alternative classification suffices to erase the proposal in the notice but cannot crystallise liability unless the alternative was also proposed in the notice. We are, therefore, not required to test the activity of the appellant for fitment under a different classification. As the scope of contract, the consideration of which is sought to be taxed, extends well beyond sound recording in both the directions, we are of the opinion that the proposed classification would not be tenable for levy of the tax - appeal allowed.

Summary

Issues:
Confirmation of demand under section 73 of Finance Act, 1994, imposition of penalty under section 78, classification of service provided by the appellant, liability to tax, exclusion as a sub-contractor, fitment of activity within the definition of service, nature of activities undertaken by the appellant, consideration for taxation, scope of contract.

Confirmation of Demand and Penalty:
The appeal challenged the demand of &8377; 1,00,58,679/- under section 73 of Finance Act, 1994, and the penalty under section 78. The appellant was held liable for levy under section 65(105) related to sound recording services. The duty liability had not been discharged, leading to the demand and penalty.

Classification of Service and Liability to Tax:
The primary issue was whether the proposed classification for tax levy applied to the appellant's activities. The adjudicating authority concluded the appellant was taxable due to being a production house with sound recording facilities, making their clients recipients of sound recording services. The registration as a sound recording service provider was not sufficient for tax liability; the activity must fit within the service definition.

Exclusion as Sub-Contractor and Fitment within Service Definition:
The appellant argued for exclusion as a sub-contractor and challenged the classification proposed for tax. The tax collector must propose a classification and test the activity's fitment within the definition. Mere registration or operation of a sound recording studio does not automatically lead to taxation.

Nature of Activities and Consideration for Taxation:
The appellant produced radio spots, engaging with advertising agencies or clients directly. The income primarily came from advertising agencies. The activities undertaken by the appellant extended beyond sound recording, involving conceptualization, script preparation, editing, and more. The proposed classification for tax levy was deemed untenable as the activities went beyond sound recording alone.

Scope of Contract and Decision:
The consideration for taxation extended beyond sound recording, making the proposed classification invalid. The Tribunal set aside the impugned order and allowed the appeal, emphasizing that the appellant's activities did not solely constitute sound recording services under the Finance Act, 1994.

This detailed analysis covers the issues of confirmation of demand, classification of service, liability to tax, exclusion as a sub-contractor, fitment within the service definition, nature of activities, consideration for taxation, and the scope of the contract as addressed in the legal judgment by the Appellate Tribunal CESTAT MUMBAI.