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TMI Blog2014 (7) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... vity 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. - Appeal No. 3489 of 2012 - Final Order No. 52464/2014 - Dated:- 13-6-2014 - Mr. G. Raghuram and Mr. Rakesh Kumar, JJ. For the Appellant : Shri Amresh Jain, Authorized Representative (DR) For the Respondent : Shri Srinivas Kotri, Advocate JUDGEMENT Per. Rakesh Kumar :- The facts leading to filing of this appeal by Revenue are, in brief, as under. 1.1 The respondent is a popular Cine Actress residing at Mumbai. She has taken service tax registration at Delhi and has been paying service tax on renting of immovable property since 2007-08 onwards. The officers of Directorate General of Central Excise Intell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Finance Act, 1994. The service tax demand was made by invoking extended period under proviso to Section 73 (1) of the Finance Act, 1994. 1.3 The above show cause notice was adjudicated by the Commissioner of Service Tax, Delhi vide order-in-original dated 17/07/2012. In course of proceeding before the Commissioner, the respondent s main plea was that the services provided by her throughout during the period of dispute were brand promotion services and not the Business Auxiliary Services for promotion or marketing or sale of the goods manufactured by her client or provided by her clients or promotion or marketing of services provided by her clients and since the brand promotion service became taxable under Section 65 (105) (zzzzq) of the Finance Act, 1994 w.e.f. 01/07/2010 only, during the period prior to 01/07/10, the services provided by her would not be taxable. The Commissioner accepting the contention of the respondent held that the services provided by her were not Business Auxiliary Services but were the services of promotion of brand of goods or services which became taxable only w.e.f. 01/07/10 and accordingly the Commissioner dropped the proceedings initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d., M/s Elder Pharmaceuticals, M/s Reymond Weil India Pvt. Ltd. etc. cannot be said to be a brand promotion, but is the activity of promotion of the goods manufactured by her clients or services provided by her clients which is covered by the definition of Business Auxiliary Service. He, therefore, pleaded that the impugned order is not correct. 4. Shri Srinivas Kotri, Advocate, the learned Counsel for the respondent, defending the impugned order by reiterating the findings of the Commissioner, pleaded that from the respondent s agreements with her clients, it is clear that she has been engaged by her clients who have established trademarks and trade names/brand names and have engaged her for promoting and marketing of the brand names/trade names by endorsement/ promotion of the services and products of the clients through activities, namely, advertising films/TV commercials, print material including photographs, transparencies, digital formats, brochures, posters, sign boards, cut outs, banners, advertisements, audio visuals, shooting for internal videos, voice recording for advertisement on radio and other advertisements, attending press conferences, sales/dealers meetings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Business Auxiliary Service, as such activities like mere establishing goodwill or adding value to a brand would fall under this newly introduced service, that the respondent is a Celebrity and hence her involvement in establishing goodwill or adding value to the brands of her clients by her involvement in various promotional activities would be covered by Section 65 (105) (zzzzq) which was introduced w.e.f. 01/07/10, that it is settled law that an activity when specifically brought under tax net from a certain date would not be liable for service tax during the period prior to the date from which it was brought under tax net and in this regard reliance is placed on the Tribunal decision in the case of Jetlite (India) Ltd. vs. CCE, New Delhi reported in 2011 (21) S.T.R. 119 (Tri. - Del.), Gujarat State Petronet Ltd. vs. CST, Ahmedabad reported in 2010 - TIOL - 1289 - CESTAT - AHM and Triveni Earthmovers Pvt. Ltd. vs. CCE, Salem reported in 2009 (15) S.T.R. 393 (Tri. - Chennai), that in any case the longer limitation period would not be applicable as the respondent had sufficient cause for non-payment of service tax and, hence, the bulk of the demand is time barred, that for same re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and related mobile platform ; (ix) performances including appearance in/as :- (1) brand promotions such as openings and inaugurations, appearance in trade meets (sales/dealer meets, alliance activities etc.) ; (2) fashion shows ; and (3) attend and perform at companys ground events e.g. Idea Rocks India , Idea Jalsa etc. or any other events organized by the company. 7. The period of dispute in this appeal is from 2006-2007 to 2010-2011. The department s contention is that the service provided by the respondent to her clients is the business auxiliary service of promotion or marketing or sale of goods provided by or belonging to the client, or promotion or marketing of service provided by clients covered by Clause (i) and (ii) of Section 65 (19) of the Finance Act, 1994 and, hence, the same would attract service tax under Section 65 (105) (zzb) ibid. The contention of the respondent, which has been accepted by the Commissioner, is that the services provided by the respondent to her clients are the services of promotion or marketing of brand of goods under a contract and are covered by Section 65 (105) (zzzzq) of the Finance Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i). Thus, from perusal of Section 65 (19) it is clear that Business Auxiliary Service covers among others, any service in relation to promotion or marketing or sale of the goods produced or provided by or belonging to the client or promotion or marketing of service provided by the client. 9. Clause (zzzzq) of Section 65 (105) of the Finance Act, 1994 which was inserted in this Section w.e.f. 01/07/10 by Finance Act, 2010 is reproduced below :- Section 65 (105) (zzzzq) : to any person, by any other person, through a business entity or otherwise, under a contract for promotion or marketing of a brand of goods, service, event or endorsement of name, including a trade name, logo or house mark of a business entity by appearing in advertisement and promotional event or carrying out any promotional activity for such goods, service or event. Explanation. - For the purposes of this sub-clause, brand includes symbol, monogram, label, signature or invented words which indicate connection with the said goods, service, event or business entity; 9.1 From perusal of the above clause, it is clear that for covering a service under this clause - (a) the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt s products or services is enough to classify the activity as Business Auxiliary Service , as sale of goods or service is not necessary for Business Auxiliary Service ; and (c) it is not disputed that the respondent herself has admitted in her voluntary statement dated 27/5/11 that in terms of her agreements with various clients, she had agreed to render services for promotion or marketing of their goods/services and had provided such services to those clients for which she had received consideration at the rate specified in the contracts. 12. We do not agree with the above contention of the Department, for the following reasons :- (a) While Business Auxiliary Service in terms of its definition in Section 65 (19), covers among other activities, the services in relation to promotion or marketing or sale of the goods produced or provided by or belonging to the client or promotion or marketing of services provided by the client, Section 65 (105) (zzzzq) covers the promotion or marketing of the brand name/trade name of the client, which may be of more than one product (b) From the wordings of Clause (zzzzq) of Section 65 (105), it is clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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