2018 (12) TMI 1186 - AT - Service Tax

Business Exhibition Service - value of the entry tickets sold to general public - Held that - It is true that there are also amusement facilities within the premises but that does not characterize it as an amusement facility. The exclusion of amusement facility under Section 65 B(9) also clarifies that amusement facility does not include a place within such facility where other services are provided - the appellant is liable to pay service tax w.e.f. 01.07.2012 on the value of the entry tickets sold to general public. Sale or transmission of electricity during the exhibition - Held that - Rule 5(1) of Service Tax (determination value of service) Rules, 2006 as been already held ultra vires by the Hon ble High Court of Delhi which decision was upheld by the Supreme Court in the case of Intercontinental 2012 (12) TMI 150 - DELHI HIGH COURT - demand set aside. Advertisement service - Publicity income which they received for sale of space or time for advertisement - period 2005-2006 to 2009-2010 - Held that - The appellant is not disputing the demand and only contesting the imposition of penalty under Section 78 of the Act and will deal with the penalties separately. Short payment of service tax - Business Exhibition service - Mandap keeper services - Held that - There is a dispute regarding the method of calculation and it requires further examination and decision by the original authority and the demand on this count needs to be remanded to the original authority - matter on remand. Interest on delayed payment of service tax - stall rentals received in advance - Held that - Merely because some applicants are not allotted a stall and their amounts are refunded to them the service tax does not get payable only after the allotment process is complete. As there was a delay in payment of service tax on stall rentals received is liable to interest and confirmed penalty - demand upheld. Renting of immovable property service - Held that - The appellants paid the service tax along with interest and is only contesting the rent pertaining to the months of April and May, 2007 on the ground that the renting of immovable property became a taxable services vide Section 65 (105) (zzzz) of the Finance Act, 1994 is w.e.f 01.06.2007 - demand set aside. Penalty u/s 78 - Held that - The appellant is a charitable society registered as such and is engaged in the organizing industrial exhibition. It is difficult to attribute malafide intention to evade payment of service tax so as to defraud the Government by the society. Even if their understanding the law is different from the understanding of the Department that should not form a basis for imposition of penalties - this a fit case to set aside the penalties imposed under Section 80 of Finance Act, 1994 - penalty set aside. Appeal disposed off.

Issues:
1. Taxability of entry tickets sold to the general public for Business Exhibition Service
2. Taxability of sale or transmission of electricity during the exhibition
3. Taxability of publicity income received for advertisement services
4. Short payment of service tax on Business Exhibition and Mandap keeper services
5. Interest on delayed payment of service tax on stall rentals received in advance
6. Taxability of renting immovable property service

Analysis:

1. Taxability of Entry Tickets:
The appellant, a charitable society organizing industrial exhibitions, contested the taxability of entry tickets sold to the general public for Business Exhibition Service. The appellant argued that such tickets do not fall under taxable services pre-01.07.2012 and post-01.07.2012, they should be exempt due to the negative list. The tribunal held that the tickets were for visitors' enjoyment, not exhibitors, and thus taxable from 01.07.2012 onwards.

2. Taxability of Electricity Sale:
Regarding the sale of electricity during the exhibition, the appellant argued against tax liability citing a court ruling that reimbursable expenses cannot be taxed. The tribunal agreed, setting aside the demand. Additionally, the tribunal noted that post-01.07.2012, electricity transmission services were not taxable, further supporting the appellant's position.

3. Publicity Income Taxability:
The appellant did not dispute the tax on publicity income but contested the penalty. The tribunal upheld the tax demand and addressed the penalty separately, setting it aside.

4. Short Payment Dispute:
A disagreement arose over the short payment of service tax on Business Exhibition and Mandap keeper services. The tribunal found calculation discrepancies and remanded the matter for further examination by the original authority.

5. Interest on Delayed Payment:
Regarding interest on delayed service tax payment for stall rentals, the tribunal found a clear link between advance payments and service provision. Thus, interest and penalty were confirmed.

6. Renting Immovable Property Taxability:
The appellant contested service tax on renting immovable property pre-01.06.2007. The tribunal agreed with the appellant, setting aside the demand for that period. However, tax liability from 01.06.2007 was upheld.

In conclusion, the tribunal upheld tax demands on entry tickets and publicity income but set aside demands on electricity sale and pre-01.06.2007 property rentals. The matter of short payment was remanded, and penalties were set aside due to the appellant's charitable status and lack of fraudulent intent.

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