2023 (5) TMI 243 - AT - Service Tax

Levy of Service tax - incentives received based on the turnover generated (by the Advertising Agency from a third party) - consideration received by the Appellant from the Media in respect of the same services, or not - HELD THAT - The very issue as to whether the incentives received by the Advertising Agency from a third party i.e., Media as incentive is liable for Service Tax payment or not has been gone into in a considerable detail by the Tribunal in the case of GREY WORLDWIDE (I) PVT LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI 2014 (9) TMI 180 - CESTAT MUMBAI where it was held that the confirmation of service tax demand on these amounts, i.e. volume discounts, rate difference and amounts written back cannot be sustained in law. Appeal allowed.

Summary

Issues:
The issue involved in this case is whether the incentives received by an advertising agency from the media without any contractual obligation to render any service are liable to service tax payment.

Comprehensive Details:

Issue 1: Liability of Service Tax on Media Incentives
The Appellant, providing advertising services, receives incentives from Print or TV media in addition to the 15% commission on advertising charges. The Department contends that Service Tax is applicable on these incentives. The Appellant argues that as they have a service provider-client relationship only with their clients, paying Service Tax on commissions, no such relationship exists with the Media providing incentives. Citing the case of Grey Worldwide (I) Pvt Ltd vs CST, Mumbai, the Appellant asserts that no Service Tax is due on such incentives. The Tribunal's analysis in the mentioned case highlights that incentives from Media are gratuitous payments for advertisements, not subject to Service Tax under Business Auxiliary Services (BAS). The Tribunal's consistent stance across various decisions supports this view, emphasizing the lack of contractual obligation between the advertising agency and the media for provision of services.

Issue 2: Tribunal's Decision
After considering both parties' arguments and the Tribunal's detailed examination in previous cases, the Tribunal concludes that incentives received by the Appellant from the Media without a contractual obligation for services are not subject to Service Tax under BAS. The Tribunal's decision aligns with the precedent set in earlier cases, emphasizing that such incentives are not payments for services rendered but rather discounts or gratuities for advertisements. Therefore, the confirmation of Service Tax demand on incentives, volume discounts, rate differences, and written-back amounts is set aside, as they do not constitute consideration received for services provided.

Conclusion
Given the consistent legal interpretation and precedent established by the Tribunal, the present Appeal is allowed, as the incentives received by the Appellant from the Media without a contractual obligation for services are not liable to Service Tax under BAS.

This summary provides a detailed overview of the legal judgment, focusing on the issues involved and the Tribunal's decision based on the arguments presented by the parties and the precedent set in previous cases.