2022 (11) TMI 151 - AT - Service Tax

Recovery of Service tax - Broadcasting Service - appellant is neither Broadcasting agency nor has provided broadcasting services, but have collected the service tax on broadcasting charges from their clients under the category of Broadcasting Service - contravention of provisions of Section 73A(2) of the Finance Act, 1994 in as much as the service tax is collected, which is not required to be collected from their clients and have failed to pay the amount so collected to credit of the Central Government - time limitation. HELD THAT - The provisions of Section73A of the Act are applicable where the amount of service tax has been collected and retained by the assessee. In the present case, it is admitted facts that that no service tax was chargeable on the activity of the appellant, since the activity of Appellant do not qualify them as a broadcasting agency nor can be classified under Broadcasting Services. It is also true that Section73A (2) which mandated that any person who collects any amount as representing service tax to deposit it with the Government also. In the present case demand of service tax under the provisions of section 73A of the finance Act confirmed by the Ld. Commissioner without discussing the activity of appellant and without going into the facts of the case legally not correct. The Broadcasting companies deposited such amount of service tax with the Government for discharging their liabilities of service tax under the category of broadcasting service. Clearly, the role in the entire transaction of appellant is just like an mediator who collects money from the clients on behalf of the broadcasting company. It is also admitted fact in the present case that the retainership fees or commission income separately charged and collected from the clients, appellant paid the service tax under the advertising services. The said undisputed facts clearly established that the present one is not a case where the appellant had collected any amount as service tax and retained the same by not depositing the same with the Government exchequer - the Appellant has collected the service tax from the clients on behalf of Broadcasters in relations to service of Broadcasting services and transferred the said service tax amount to Broadcaster for discharging service tax liability on Broadcasting services . In the present matter revenue nowhere disputed the facts that Broadcaster had paid the said disputed service tax to Government. In the present matter Broadcasters already deposited the service tax amount to government as allegedly collected by the appellant from clients against the Broadcasting Services and demand of service tax again from the appellant would amount to double payment. However, the Broadcasters having already paid such collected amount to the government, the appellant cannot be asked to deposit the same again with the Government exchequer - once tax has already been paid on the services, it was not open to the Department to confirm the same against the appellant, in respect of the same services. The impugned order liable to be set aside - Since the entire case is being decided on merit, the limitation and time bar issues raised by the Ld. Counsel are not taken up - appeal allowed - decided in favor of appellant.

Issues:
1. Whether the appellant is liable to deposit the service tax collected from clients under the category of "Broadcasting Service" with the government?
2. Whether the demand for service tax is time-barred?
3. Whether the appellant's role as a mediator in collecting and passing on the service tax to broadcasters exempts them from liability?
4. Whether the demand for service tax amounts to double taxation?

Analysis:

Issue 1: Liability to deposit service tax collected under "Broadcasting Service":
The appellant, an advertising agency, was involved in purchasing time slots from electronic media, receiving agency commission, and selling these slots to clients for screening advertisements. The dispute arose regarding the classification of their activities under the Broadcasting Service category. The Commissioner demanded service tax under various sections of the Finance Act, contending that the appellant collected service tax from clients but failed to pay it to the government. The Tribunal analyzed the provisions of Section 73A of the Finance Act and concluded that the appellant acted as a mediator, passing on the collected service tax to broadcasters who deposited it with the government. As the appellant did not retain any service tax amount, the demand for depositing service tax with the government was deemed incorrect.

Issue 2: Time-barred demand for service tax:
The appellant argued that the show cause notice was issued beyond the limitation period, asserting that all relevant information was available to the department. The Tribunal did not delve into the time bar issue as the case was decided on merit.

Issue 3: Role as a mediator and exemption from liability:
The appellant contended that they functioned as a facilitator between broadcasters and clients, passing on the service tax collected to the broadcasters. The Tribunal observed that the appellant's role was akin to a mediator, and as they did not retain any collected amount, the demand for service tax under Section 73A was deemed unsustainable.

Issue 4: Double taxation and demand for service tax:
The appellant argued against double taxation, emphasizing that the broadcasters had already paid the service tax to the government. The Tribunal agreed that demanding service tax from the appellant would lead to double payment, as the broadcasters had already fulfilled their tax liability. Consequently, the impugned order was set aside, and the appeal was allowed.

This detailed analysis of the judgment highlights the key legal arguments, interpretations of relevant provisions, and the Tribunal's decision on each issue raised in the appeal.

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