2019 (2) TMI 768 - AT - Service Tax

Cenvat Credit - input services - services obtained through agents - advertising service was received by the appellant directly from the provider thereof i.e. 94.3 FM for advertising its center - Commercial Training and Coaching Service is provided by the appellant - Circular No. 96/7/2007 dated 23.08.2007 - Held that - The invoices are issued by the advertising agencies but on the appellant. The amount as charged by these agencies in the invoices is the amount charged for advertising in the print media plus amount towards service charges as advertising agency (85% 15%). On the said 15% amount, service tax is charged by the advertising agency which is paid by the appellant. Thus the invoice itself is sufficient to prove that it is the appellant who is the service recipient qua the advertising services though the services have been received from the provider thereof by the appellant after engaging an agency for the purpose. Agencies by the definition itself are the organisation working on behalf of their client. It is the said agency which has received service in the form of business auxiliary service, an exempted service and not the appellant. Thus, it is wrongly observed by Commissioner (Appeals) that appellant has availed credit of exempted service (BAS). It is rather apparent from facts that for booking an advertisement with print media though through an agency on behalf of the appellant, it is the appellant only who is recipient for the advertising service received to promote his coaching centre i.e. to provide the output service of CTCS. Thus, the payment made by the appellant for the purpose definitely becomes an input for him for providing a Commercial Coaching and Training Service. The finding of the Commissioner Appeals for holding that impugned services are Business Auxiliary Service which are not taxable hence not eligible for taking audit is held to be an erroneous - appeal allowed - decided in favor of appellant.

Issues:
1. Disallowance of cenvat credit amounting to ?4,33,833/- during April 2012 to March 2013.
2. Dropping of demand to the extent of ?82,369/- based on receiving advertising service directly from the provider.
3. Applicability of Circular No. 96/7/2007 dated 23.08.2007 regarding business auxiliary service classification.
4. Whether the appellant rightly availed credit for advertising services obtained through agencies.
5. Time bar objection against the impugned Show Cause Notice (SCN).

Issue 1: Disallowance of cenvat credit
The appellant, providing Commercial Training and Coaching Services, was found to have wrongly utilized cenvat credit. Initially, the entire demand was confirmed, but in the order under challenge, a portion of the demand was dropped. The appellant argued that the advertising service was an input for them, and credit was rightly taken. The Tribunal observed that the appellant was the service recipient for advertising services, even though agencies were involved. Relying on precedents, the Tribunal held that the appellant's payment for advertising services was an input for their business, allowing the cenvat credit. The order disallowing the credit was set aside, and the appeal was allowed.

Issue 2: Dropping of demand based on direct service
The demand to the extent of ?82,369/- was dropped because the advertising service was received directly from the provider, 94.3 FM. However, the demand for similar services obtained through agencies was not confirmed. The Tribunal found that the appellant was the actual service recipient for advertising services, even when agencies were used, supporting the appellant's claim for credit. The order dropping the demand based on direct service was found unsustainable, and the appeal was allowed.

Issue 3: Circular No. 96/7/2007 interpretation
The Department relied on Circular No. 96/7/2007 to argue that canvassing for advertisements is not a taxable service but a business auxiliary service. The Tribunal disagreed, emphasizing that the appellant's payment for advertising services was indeed an input for their business. The Circular's interpretation was found inapplicable, and the appeal was allowed.

Issue 4: Applicability of cenvat credit for services obtained through agencies
The appellant contended that credit for advertising services obtained through agencies should be allowed, similar to services received directly. The Tribunal agreed, stating that the appellant was the service recipient for advertising services, regardless of the involvement of agencies. The appellant's claim for credit was upheld, and the appeal was allowed.

Issue 5: Time bar objection against the SCN
The appellant objected to the impugned SCN as being time-barred. However, the Tribunal did not address this objection in the judgment provided. Therefore, the issue of the time bar objection against the SCN was not resolved in the judgment.

In conclusion, the Tribunal allowed the appeal, setting aside the order disallowing the cenvat credit for advertising services. It held that the appellant rightly availed credit for services obtained through agencies, emphasizing that the appellant was the actual service recipient. The Tribunal rejected the Department's reliance on Circular No. 96/7/2007 and upheld the appellant's claim for credit. The judgment provided a detailed analysis supporting the appellant's position and clarified the applicability of cenvat credit in the given circumstances.

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