2014 (7) TMI 78 - AT - Service Tax

Classification of service - activity of Brand endorsement - appearing in advertisement and promotional events - assessee is business entity or not - whether the activity of the respondent is Business Auxiliary Service covered by Section 65 (105) (zzb) readwith Section 65 (19) or is the service of brand promotion covered by Section 65 (105) (zzzzq) - Held that - notwithstanding the language of the respondent s contracts with her clients that she was to provide the services of endorsement/promotion of the clients services and products, ongoing through the details of the activities through which the service of endorsement/promotion of the client s product/services is to be provided, it is clear that the overall objective of these agreements is the brand promotion and not mere promotion or marketing of a particular product or service. Therefore, we hold that the services provided by the respondent are covered by Section 65 (105) (zzzzq) which had come into force w.e.f. 01/07/10 and, hence, during the period prior to 01/07/10 the respondent s activity in terms of her contracts mentioned above could not be taxable under Section 65 (105) (zzb), as, as held by Tribunal in the case of Jetlite (India) Ltd. vs. CCE, New Delhi (2010 (12) TMI 40 - CESTAT, NEW DELHI), Gujarat State Petronet Ltd. vs. CST, Ahmedabad (2010 (8) TMI 220 - CESTAT, AHMEDABAD ) and Triveni Earthmovers Pvt. Ltd. vs. CCE, Salem (2009 (4) TMI 9 - CESTAT CHENNAI), an activity is not liable to service tax under a pre-existing category when that activity had been brought under tax net from a certain date. - Decided against Revenue.

Issues Involved:

1. Classification of services provided by the respondent.
2. Applicability of service tax under Section 65 (105) (zzb) versus Section 65 (105) (zzzzq) of the Finance Act, 1994.
3. Invocation of the extended period for demand under Section 73 (1) of the Finance Act, 1994.
4. Imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994.

Detailed Analysis:

1. Classification of Services Provided by the Respondent:
The primary issue was whether the services provided by the respondent, a popular cine actress, were classified under 'Business Auxiliary Service' (BAS) taxable under Section 65 (105) (zzb) read with Section 65 (19) of the Finance Act, 1994, or under 'Brand Promotion Service' taxable under Section 65 (105) (zzzzq) of the Finance Act, 1994, which became effective from 01/07/2010. The respondent argued that her services were related to brand promotion, which only became taxable from 01/07/2010, and not BAS as claimed by the Revenue. The Commissioner accepted the respondent's contention, holding that her services were for brand promotion and not for the promotion or marketing of specific goods or services. The Tribunal upheld this view, noting that the contracts and activities were aimed at promoting the brand rather than specific products or services, thus falling under the purview of Section 65 (105) (zzzzq).

2. Applicability of Service Tax under Section 65 (105) (zzb) versus Section 65 (105) (zzzzq):
The Tribunal examined the definitions and scope of BAS under Section 65 (19) and brand promotion under Section 65 (105) (zzzzq). It was noted that BAS includes services related to the promotion or marketing of goods or services produced or provided by the client. In contrast, brand promotion involves promoting the brand name, logo, or trade name of a business entity, which may cover multiple products or services. The Tribunal concluded that the respondent's activities, such as appearing in advertisements and promotional events, were more aligned with brand promotion rather than the mere marketing of specific goods or services, thus falling under Section 65 (105) (zzzzq).

3. Invocation of the Extended Period for Demand:
The Revenue invoked the extended period under the proviso to Section 73 (1) of the Finance Act, 1994, to demand service tax for the period from 2006-2007 to 2010-2011. The respondent contended that the longer limitation period was not applicable as there was no willful suppression or misstatement of facts, and she had sufficient cause for non-payment of service tax. The Tribunal agreed with the respondent, noting that the services provided were not taxable under the pre-existing category before 01/07/2010, and thus, the extended period for demand was not justified.

4. Imposition of Penalties:
The show cause notice also sought to impose penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The respondent argued that no penalties should be imposed as there was no deliberate intention to evade tax, and the services were not taxable under the pre-existing category. The Tribunal upheld the Commissioner's decision to drop the proceedings, concluding that the respondent had a reasonable cause for non-payment of service tax, and thus, no penalties were warranted.

Conclusion:
The Tribunal dismissed the Revenue's appeal, affirming the Commissioner's order that the services provided by the respondent were related to brand promotion and not Business Auxiliary Services. Consequently, these services were only taxable from 01/07/2010 under Section 65 (105) (zzzzq) and not under the pre-existing category of Section 65 (105) (zzb). The extended period for demand and the imposition of penalties were also found to be unjustified. The judgment was pronounced in the open court on 13/06/2014.

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