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TMI Blog2006 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 to 1999-2000. A Show Cause Notice dated 25-7-03 demanding Service Tax amount of Rs. 2,71,54,600/- was issued as it appeared that the said amount reflected in the balance sheets relates to service provided in the capacity of an advertising agency to a client, as defined in erstwhile Section 65(2) now Section 65(3) of the Finance Act,1944. The Show Cause Notice was adjudicated by the Deputy Commissioner, who, after due consideration, held that the said amounts shown in the balance sheets are income against advertising service and therefore confirmed the Service Tax demanded. He also imposed penalties under Section 76 and 78 of the Finance Act, 1994 and ordered payment of interest under Section 75 ibid. being aggrieved the present appeal together with stay application". and the Commissioner (Appeals) found - 5. "I have carefully considered the written and oral submissions made by the appellants. I have also considered the relevant case laws. I find that the instant case pertain to the application of the erstwhile Section 65(2) of finance Act, 1994 [now Section 65(3)] in the case of the appellants wherein the Act defined "Advertising Agency" to mean any commercial concern engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e electronic media during the period when there are maximum viewers. This can happen only when the advertisements intermingle with popular programs. It is here that the appellants role as an advertising consultant comes into play. This is so, because, it is only the appellants who know the details of future programs that will be broadcasted and thus it is they who can advice their clients as to how and in what format at the advertisement should be at what point of time it should be flashed etc. 8. I have also perused that CBEC's Circular F.No.345/497-TRU dated 16-8-1999 relied upon by the appellants wherein the said Circular clarifies that in case of persons, who are printing and publishing telephone directories, yellow pages or business directories, their activity is essentially of printing a readymade advertisement from the advertisers and publishing the same in the directory. Their activities are similar to those carried out by newspapers or periodicals. As, such, this activity shall not attract Service Tax. However, if these persons also undertake any activity relating to making or preparation or an advertisement, such as designing visualizing, conceptualizing etc. then they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have relied on the Tribunals decision, in the case of M/s. Hindalco Industries Ltd. V. CCE [2003{161} E.L.T. 346 (Tri.-Del.)]. The appellants are making vain attempts to support their cause. Section 73(a) ibid does not include the words "suppression of facts" but relates to a situation where the assessee fails to "disclose wholly or truly all material facts". and confirmed the demands & penalties. Hence this appeal 2.1 The appellants contend that they do not render any service connected with making, preparation display or exhibition of advertisement. The agencies other than them conduct the aforesaid activities including what & where to display the advertisement and rely on the decision of Madras High Court in case of Advertising Club v. CBEC - 2006 (2) S.T.R. 457 (Mad.) = 2001{131} E.L.T. 35 (Mad) and decisions of this tribunal in , Azad Publication - 2006 (3) S.T.R. 249 (Tribunal) = 2004 (167) E.L.T. 59, The Incoda - 2006 (3) S.T.R. 302 = 2004 {174} E.L.T. 65; Team UPD - 2006 (3) S.T.R. 427 = 2005 (179) E.L.T. 469 & Team UPD- 2006 (3) S.T.R. 602 = 2005 (184) E.L.T. 389 to claim that the activity as referred to in Para 21 of the Madras High Court decision having defined t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) has also not brought on record any evidence on the basis of which he arrived at his findings. Factually, the appellants help to the Advertisers, cannot be in preparation or making of an advertisement if as that service is performed only by specialized advertising agencies e.g. Lintas, Ulka etc. engaged for preparation of advertisement no such activity stand in that regards by the appellants is on record. Therefore, this finding of the Commissioner (Appeals) cannot be upheld. Positive information about the future programmes to be telecasted on the channel cannot be treated as to be acting as and Advertising Agency. The appellant's reliance on the decision of the Hon'ble CESTAT in the case of Zee Telefilms - Final Order No. A/629-630/WZB/2006/ CSTB/CIII dated 24-7-2006 [2006 (4) S.T.R. 349 (Tribunal)]. In this connection is well founded in that case, clause (k) of the agreement between Zee Telefilms Ltd. and Asia Today provided that 'Zee Telefilms Ltd. shall provide the potential advertisers with information regarding advertising on any of the channels. The CESTAT in Para (j) (i) of the order (internal page 16) observed as under: "….Activity referred to in clause (k) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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