2023 (4) TMI 168 - AT - Service Tax

Recovery of Service tax - Broadcasting Services - appellant collected full transaction value on these service fees including broadcasting agency charges as well as service tax on the said charges from their clients - case of the department is that since the appellant have collected the service tax from their client by raising the bills, the same service tax was liable to be recovered under Section 73(A) of the Finance Act, 1994 - HELD THAT - The facts which is not under dispute is that the electronic media company namely M/s. Sahara (India) Pvt. Ltd are raising bill for broadcasting service to the appellant and appellant in turn without providing any other service recovering the amount from their client along with service tax which was paid by electronic media. The demand in the present case was raised under Section 73(A) on the ground that the appellant have collected the service tax from their client and not deposited to the Government Exchequer. There is no dispute that the service tax amount collected by the appellant from their client already stand deposited to the Government Exchequer by the electronic media company namely M/s. Sahara (India) Pvt. Ltd therefore, the provision of Section 73(A) cannot be invoked in the facts of the present case. The impugned orders are set aside - Appeals are allowed.

Summary

Issues:
1. Liability to pay service tax under Section 73(A) of the Finance Act, 1994.
2. Interpretation of provisions of Section 73A of the Act.
3. Applicability of Section 73A in the case of the appellant.
4. Double payment of service tax.
5. Settling demand under Section 73(A) based on previous tribunal decision.

Analysis:

1. The issue in this case revolves around the liability to pay service tax under Section 73(A) of the Finance Act, 1994. The appellant, a mediator between electronic media companies and clients, collected service tax from clients on behalf of the broadcasters. The department contended that since the appellant collected service tax from clients, it was liable to be recovered under Section 73(A). However, the tribunal found that the service tax amount collected by the appellant was already deposited by the electronic media companies, making the demand under Section 73(A) unsustainable.

2. The tribunal analyzed the provisions of Section 73A of the Act, which require any person who collects service tax to deposit it with the Central Government. It was established that Section 73A applies where the service tax amount is collected and retained by the assessee. In this case, the appellant acted as a mediator and passed on the service tax collected from clients to the broadcasters, who had already paid the service tax to the government. Therefore, the demand under Section 73A was deemed incorrect.

3. Considering the appellant's role as a mediator and the passing on of service tax to the broadcasters, the tribunal concluded that the appellant did not retain any service tax amount collected from clients. Since the broadcasters had already paid the disputed service tax to the government, demanding service tax from the appellant would result in double payment. The tribunal held that the transaction of the appellant did not fall under the provisions of Section 73A, leading to the setting aside of the impugned order confirming the demand.

4. The tribunal addressed the issue of double payment of service tax, emphasizing that once tax had been paid on the services by the broadcasters, it was not permissible for the department to demand the same amount from the appellant. The tribunal highlighted that the broadcasters had already paid the service tax amount to the government, making it unjust to require the appellant to deposit the same amount again. Therefore, the impugned order was set aside to prevent double payment of service tax.

5. Based on the previous tribunal decision that settled the issue in a similar case, the tribunal held that the demand in the present appeals was not sustainable. As the facts and circumstances of the cases remained unchanged from the previous decision, the tribunal followed its earlier ruling and set aside the impugned orders, allowing the appeals.

In conclusion, the tribunal's detailed analysis of the provisions of Section 73A and the appellant's role as a mediator led to the setting aside of the demand under Section 73(A) and the allowance of the appeals.