2014 (2) TMI 758 - AT - Service Tax

Classification - Levy of service tax on advertisements being flashed on the web site without any creative work involved - Business Auxiliary Services (BAS) - Held that - As per the appeal memorandum, service is classifiable under sale of advertising space and time . However, the appeal memorandum seeks to classify the said services under BAS prior to 01/05/2006. This contention of the Revenue is contradictory. If the service is classifiable under sale of advertising space and time with effect from 01/05/2006 which is a totally different service and which has not been carved out of BAS, the Revenue cannot contend that the same should be classified under BAS prior to 01/05/2006 - It is a settled position of law that when the new entry is created so as to bring the activity under the category of taxable service, it is implied that the said activity was not taxable prior to inception of the new entry. - No demand - decided against the revenue.

Summary

Issues:
Classification of services provided by the appellant under the category of Business Auxiliary Services (BAS) or "sale of advertising space and time service" for the purpose of service tax liability.

Detailed Analysis:

1. Classification of Services under BAS or "Sale of Advertising Space and Time Service":
- The appellant, engaged in e-commerce transaction services, charged commission from sellers and a "listing fee" for banner advertising on their website.
- The Revenue contended that the services should be classified under BAS and demanded service tax. The Commissioner held that commission falls under BAS, but listing fees are not covered under BAS.
- The Revenue appealed, arguing that listing fees should also be classified under BAS.
- The Tribunal noted that the Revenue's argument was contradictory. If services were classified under "sale of advertising space and time" from a certain date, they cannot be classified under BAS before that date.
- The Tribunal emphasized that creating a new taxable service category implies that the activity was not taxable before the new entry.
- The show-cause notice did not raise the classification under BAS, further weakening the Revenue's case.
- Consequently, the Tribunal dismissed the Revenue's appeal, finding no merit in their argument.

2. Adjournment Request by Respondent:
- The respondent sought an adjournment, claiming they did not receive the notice. However, it was evident that they were aware of the hearing date, as it was the fifth time the case was listed for hearing.
- The Tribunal denied the adjournment request, considering the respondent's repeated awareness of the hearing dates.

In conclusion, the Tribunal upheld the Commissioner's decision regarding the classification of services provided by the appellant, dismissing the Revenue's appeal due to the contradictory nature of their argument and lack of merit in their contentions. The Tribunal also addressed the respondent's adjournment request, denying it based on their repeated knowledge of the hearing dates.