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2017 (9) TMI 507 - AT - Service TaxLease Rentals collected by appellant from Theatre owner - Supply of tangible goods for use - case of Revenue is that onetime registration fees collected by the Appellant from the theatre owner is nothing but a part of the consideration for providing the above said taxable service and has to be included in gross amount for providing services and service tax demanded on the same - extended period of limitation - Held that - there is no suppression of fact on appellant s part. It is also observed that the appellant obtained DDQ (Determination of Disputed Question) dt. 26.6.2008 from Commissioner of Sales Tax, who held that lease rental is liable for VAT. The appellant accordingly was discharging the VAT liability even before the taxability on Supply of Tangible goods for use . With the above undisputed facts. We are of the clear view that there is no suppression of facts with intent to evade payment of Service Tax on lease rentals on DCE, on the part of the appellant. Therefore we hold that the demand for extended period is clearly time barred - As regard demand of service tax on merit for the normal period, various vital facts and submissions of the Appellant were not properly verified by the Adjudicating Authority, therefore we remand the case relating to lease rentals & registration fees for the normal period with direction to Adjudicating Authority to verify whether the contentions made by the Appellants are correct. CENVAT credit - Capital goods - content delivery services and sale of space for advertisement service - Held that - there was no contract or agreement between the Theatre owners and the persons whose advertisements were exhibited in cinema theaters. Only the Appellant had an agreement with such persons to exhibit the advertisements. Thus there is no ground to hold that the Appellant were providing any business supports service to Theater owner. The DCE equipment at the most can be said to have been jointly used by the Appellant and the Theater owner to provide the services of Sale of Space for Advertisement. The DCE Equipment being specified Capital goods as defined under Rule 2 (a) and having been used for providing output service are eligible for availment of credit. In terms of Rule 3(1) of Cenvat Credit Rules and proviso to Rule 3 (5) it transpires that the credit is available even if the Capital goods are removed outside the premises of the provider of output service for providing the output service - The appellant paid service tax on service of sale of space for advertisement which was provided through the said DCE. It therefore leaves no doubt that credit on Capital goods is available even if they are removed outside from the premises of the Appellant for providing output service. We are therefore of the view that there is no ground for denial of cenvat credit on Capital goods to the Appellant. Extended period of limitation - Held that - Adjudicating Authority has admitted that the Appellants have disclosed CENVAT Credit on Capital goods in the return, despite recording this, he has given adverse finding on limitation. Considering the fact that Appellants have been paying VAT from 2006 that too at higher rate than the service tax rate, even before SOTGU Services became taxable service, no malafide can be attributed to invoke extended period for denying cenvat credit - we set aside the demand of Cenvat Credit on Digital Cinema Equipment on merit as well as on limitation. Appeal allowed in part and part matter on remand.
Issues Involved:
1. Service Tax Demand on Lease Rentals for Digital Cinema Equipment (DCE) 2. Classification of Services for Advertisement Procurement 3. Disallowance of CENVAT Credit on Capital Goods 4. Invocation of Extended Period for Demand Detailed Analysis: 1. Service Tax Demand on Lease Rentals for Digital Cinema Equipment (DCE): The primary issue revolves around whether the lease rentals collected by the appellant from theater owners for Digital Cinema Equipment (DCE) should be classified under "supply of tangible goods for use" as per Section 65 (105) (zzzz) of the Finance Act, 1994. The appellant argued that the possession and control of the DCE were transferred to the theater owners, who could use the equipment independently, including for purposes not related to the appellant's services, such as screening IPL matches and local advertisements. The appellant also paid VAT on these transactions, which they claim indicates a transfer of right to use the goods. The adjudicating authority, however, held that the equipment remained under the appellant's control, citing clauses in the agreement that stated the equipment would remain the property of the appellant and that the appellant would bear the costs of repairs and maintenance. The Tribunal found that the adjudicating authority did not adequately consider the appellant's submissions or the terms of the agreement, which indicated that theater owners had operational control over the DCE. The Tribunal noted that the appellant had been paying VAT since 2006 and had obtained a ruling from the VAT authority confirming the applicability of VAT, suggesting that the transaction involved a transfer of the right to use the goods. The Tribunal remanded the case for reconsideration of the demand for the normal period, directing the adjudicating authority to verify the appellant's claims regarding the operational control of the theater owners and the use of the DCE for purposes other than those provided by the appellant. 2. Classification of Services for Advertisement Procurement: The appellant contended that their service of procuring advertisements for display in theaters should be classified under "sale of space or time for advertisement" under Section 65 (105) (zzzm) of the Finance Act, 1994, rather than "advertising agency services." The appellant argued that they were not involved in creating or preparing advertisements but merely provided space for their display. The revenue, however, classified the service as "advertising agency services," which led to the disallowance of CENVAT credit on the capital goods used for this service. The Tribunal found that the appellant's service involved providing space for advertisements, which falls under "sale of space or time for advertisement." The Tribunal noted that the appellant had agreements with advertisers and shared the revenue with theater owners, indicating that the service was not merely an agency service. The Tribunal concluded that the appellant was entitled to CENVAT credit on the capital goods used for providing this service. 3. Disallowance of CENVAT Credit on Capital Goods: The adjudicating authority disallowed CENVAT credit on the capital goods (DCE) used by the appellant, arguing that the equipment was used by theater owners to provide services to the appellant. The appellant contended that the DCE was used for their output services, including content delivery and sale of space for advertisement, and that they were entitled to CENVAT credit under Rule 2(a) of the CENVAT Credit Rules, 2004. The Tribunal found that the DCE was used for the appellant's output services and that there was no agreement between theater owners and advertisers. The Tribunal concluded that the appellant was entitled to CENVAT credit on the capital goods, as they were used for providing taxable output services. The Tribunal also noted that the appellant had disclosed the CENVAT credit in their returns, and there was no suppression of facts to invoke the extended period for demand. 4. Invocation of Extended Period for Demand: The Tribunal found that the demand for the extended period was time-barred. The appellant had been paying VAT on the lease rentals since 2006, and the VAT authority had confirmed the applicability of VAT on these transactions. The Tribunal noted that the appellant had disclosed the CENVAT credit in their returns and had responded to inquiries from the revenue, indicating no suppression of facts. The Tribunal concluded that the extended period for demand could not be invoked. Conclusion: The Tribunal set aside the demand for CENVAT credit on capital goods and the corresponding interest and penalty. The Tribunal remanded the case for reconsideration of the demand for service tax on lease rentals for the normal period, directing the adjudicating authority to verify the appellant's claims regarding the operational control of the theater owners and the use of the DCE. The Tribunal also set aside the demand for service tax on lease rentals for the extended period as time-barred.
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