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TMI Blog2018 (2) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... r time for Advertisement" service by including the three components, variable cost, fixed cost and profit sharing - Held that: - appellant has strongly argued that from the beginning itself, the appellant has contended that they have been discharging service tax including on all the three components; that the same has not been considered by the authorities below - the issue has to be verified and for this limited purpose, the matter requires to be remanded to the adjudicating authority - matter on remand. CENVAT credit - service tax paid on telecasting fee which was paid for broadcasting tele serials - Held that: - the telecasting charges paid are used for providing the said output service of 'Sale of space or time for Advertisement' - it was already found that the appellant is not liable to discharge service tax under the category of programme producing service - The contention of the department that programmes are telecast after production of the serials etc. is flimsy and not supported by any legal basis - credit allowed. Appeal allowed in part and part matter on remand. - Appeal No. ST/363/2009 - Final Order No. 40341 / 2018 - Dated:- 6-2-2018 - Ms. Sulekha Beevi C.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials for consideration. The department proposes to levy service tax on the consideration received for transfer of copyright under the category 'programme production service' which is highly erroneous. During the relevant period, the temporary transfer of Intellectual Property Right (IPR) was not subject to levy of service tax. Even after the said activity became taxable under the category of Intellectual Property Service , it excluded the temporary transfer of copy right. 2.3 On the second issue that the appellant has not discharged service tax on all three segments namely fixed cost, variable cost and profit sharing, the ld.counsel submitted that this allegation is factually incorrect; that in the reply to show cause notice itself, the appellant has stated that they have discharged service tax on all the components. 2.4 The third allegation is that appellant has wrongly availed cenvat credit of service tax paid on telecast charges. The telecast charges were paid to the broadcaster for telecasting programme. The appellant is given time slots as consideration for telecasting programme. Apart from such free commercial time, the appellant does not receive any other co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts revealed that appellants have not paid service tax on fixed cost and profit sharing. 3.3 On the third issue of irregular availment of cenvat credit, Ld. AR submitted that the output service of programme producers service is liable to levy of service tax. Similarly, the activity of 'Sale of space or time for Advertisement' is also subject to levy of service tax on which appellants are discharging service tax. They have availed credit on the service tax paid on the telecast fees and contends to have used such services for 'Sale of space or time for Advertisement' services. The telecasting programmes is after production of the serials and therefore the telecasting fees paid is not input service for production of programmes. Therefore, the credit has been rightly denied. 4. Heard both sides and gone through the facts. 5. The first issue is with regard to demand raised under the category of TV or Radio Programme Production Service . For better appreciation, the definition of TV or Radio Programme Production Service as defined under Section 65 (105) (zzu) is as under: any service provided or to be provided to any person, by a programme producer, in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same will apply only w.e.f. 01/07/2010. The learned counsel also contested the proceedings on limitation and on imposition of penalties considering the interpretation involved with reference to actual exports undertaken by the appellant only with reference to the nature of receipt of consideration from UK. ..... .... ..... 12. On the second issue, a plain reading of the statutory definition for programme producer service makes it clear that such programme producer should produce programmes on behalf of another person. In the present case, the appellants did not produce programmes for another person. There is no second person at the time of appellant producing the programme which is apparently for self. Thereafter, such programmes were given to other broadcasters on a consideration. In our opinion, such transactions are not covered by programme producer service as the appellant did not producer programme for a third party. From the above discussion and analysis, and following the decision of the Tribunal Delhi Bench, we are able to safely conclude that the demand under programme production services is unsustainable and requires to be set aside, which we hereby do. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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