2019 (10) TMI 535 - AT - Service Tax

Evasion of Service tax - non-payment of service tax on subscription fees collected from Multi System Operators and Cable Operators - demand alongwith interest and penalty - extended period of limitation - noticee s statutory liability to pay service tax on broadcasting service provided by them - failure to declare true and correct details in ST-3 returns - misdeclaration and suppression of material facts or not? Whether in respect of entire gamut of services received by the service recipients the service provider are appellants or in some case the appellants are the agent of service providers (i.e. MSMPL and DCI)? - HELD THAT - For levy of service tax identification of service provider and service recipient is of prime importance before the liability to pay service tax can be assigned. In this case while the revenue contends that Appellant are the service provider whereas appellant contend that MSMPL and DCI are the service provider who have also discharged the service tax liability in respect of the services provided under the category of Broadcasting Services. Appellants have contended that they are acting as agents of the service provider namely MSMPL and DCI for various purposes in relation to provisioning of services under the category of Broadcasting Services to MSOs/ COs. For rendering such service which include the collection of subscription charge they receive commission from MSMPL and DCI on which they discharge Service Tax under the category of Business Auxiliary Services . Revenue also do not dispute that fact that appellants were discharging service tax on the commission received by them under the category of Business Auxiliary Service. The appellant is joint venture of MSMPL and Discovery Communications India (DCI). Appellants have entered into agreement with MSO s/ CO s to provide the channels being distributed by MSMPL, DCI, TV Today Network etc. The channels being offered by the appellant are either in ala carte form or as bouquet of channel to the subscribers. In respect of the channels subscribed by the MSO/ CO, they are paying the subscription fee in respect of all the channels subscribed by them. The finding recorded by the Commissioner has been recorded ignoring the fact that Appellants were paying service tax on the Commission received by them from their principals under the category of Business Auxiliary Services. The findings recorded by the Commissioner in this respect needs to be set aside and matter remanded back to him, to pass consider all the documents and arguments advanced by the appellants in this respect. Broadcasting Service - service tax in respect of the subscription charges collected in respect of the channels distributed by the TV Today Network paid - case of Revenue is that the demand made needs to be reconsidered specifically by referring to the business models adopted by the Appellants for extending the services to service recipients i.e. MSO s/ CO s - HELD THAT - In absence of any finding recorded in this regards Commissioner has proceeded to confirm the demand by comparing two un-comparables i.e. oranges with apples. Service tax being contract/ transaction based levy the terms of contracts between the parties to the contract need to be examined and finding recorded before any demand can be made. In our view the matter needs to be remanded back to adjudicating authority for recording finding on this account also. Appeal allowed by way of remand.

Issues Involved:
1. Classification of services provided by the appellant.
2. Liability to pay service tax on the collected amount.
3. Transfer of statutory liability to pay service tax.
4. Misdeclaration and suppression of facts in ST-3 returns.

Detailed Analysis:

1. Classification of Services:
The primary issue was whether the services provided by the appellant to Multi System Operators (MSOs) and Cable Operators (COs) in relation to the distribution of television channels should be classified under "Broadcasting Service" as defined under Section 65(105)(zk) of the Finance Act, 1994, read with Section 65(15) and Section 65(16). The Commissioner held that the services fell under this category, leading to a demand for service tax.

2. Liability to Pay Service Tax:
The Commissioner determined that the appellant was liable to pay the entire amount collected as service tax from MSOs/COs. The appellant argued that they acted as agents for MSMPL and DCI, and thus, the service tax liability rested with MSMPL and DCI, who had already discharged the tax. The Tribunal found that the Commissioner did not adequately consider the agreements and evidence provided by the appellant, which indicated their role as agents. The matter was remanded for a detailed examination of these agreements and the business model.

3. Transfer of Statutory Liability:
The Commissioner held that the appellant, having collected the service tax, could not transfer the liability to MSMPL and DCI, even if they were acting as agents. The Tribunal noted that the Commissioner’s findings were made without considering the agreements and the actual practice of remitting collected amounts to MSMPL and DCI, who then paid the service tax. The Tribunal directed a re-examination of whether the appellant could validly transfer the liability under the agreements.

4. Misdeclaration and Suppression of Facts:
The Commissioner found that the appellant failed to declare true and correct details in their ST-3 returns, amounting to misdeclaration and suppression with intent to evade tax. The appellant contended that they had disclosed all necessary information and that the service tax on the subscription revenue had been discharged by MSMPL and DCI. The Tribunal noted that the Commissioner’s findings were made without adequate consideration of the appellant’s submissions and evidence. The matter was remanded for a fresh assessment of whether there was any misdeclaration or suppression.

Conclusion:
The Tribunal set aside the Commissioner’s order and remanded the matter for de novo consideration, directing the adjudicating authority to re-examine all documents and arguments, and to record detailed findings on the classification of services, liability to pay service tax, transfer of statutory liability, and allegations of misdeclaration and suppression. The Tribunal emphasized that the adjudication should be completed within six months, ensuring an opportunity for the appellant to be heard. The cross-objection by the Revenue was also disposed of.

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