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TMI Blog2019 (4) TMI 1687X X X X Extracts X X X X X X X X Extracts X X X X ..... as CBEC has clarified that the kind of activity undertaken by the appellant does not qualify to be classified under the category of Advertising Agency Service‟, demanding duty under the Advertising Agency Service‟ becomes legally not sustainable - thus it cannot be alleged that the appellant have suppressed, mis-declared any fact from the department, with intent to evade Service Tax - invocation of extended period not sustainable. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 50028 of 2015 - ST/A/53577/2018-CU[DB] - Dated:- 9-10-2018 - Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Shri Vijay Kumar, Advocate for the Appellants Shri Sanjay Jain, AR for the Respondent ORDER Per C L Mahar: The brief facts of the matter are that the appellant is registered with the Service Tax department under the category of Advertising agency services . The appellant is in the business of canvassing and contacting all potential advertisers and persuading them to give advertisement in various daily newspapers. In the process of gett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing on commission basis is not classifiable under taxable service namely advertisement agency service as provided under section 65 (105)(e) and it has further been mentioned in the clarification that such services are more appropriately classifiable under the category of Business Auxiliary Services under section 65 (105)(zzb). It has been contention of the learned advocate that since the demand in this case has been raised under the Advertising agency services which is not a proper classification of the activity undertaken by the appellant and therefore, the entire Service Tax demand is without jurisdiction and, therefore, legally not sustainable. It has further been argued that the department did not appreciate and understand the business of canvassing agent, publication of advertisement in newspapers etc. The department understands that the newspaper give discount out of the amount newspapers are receiving from the advertising agency and the advertising agency is providing services to the print media. Instead the fact is that the print media has decided rates for advertisements according to size/ space given by the newspapers for the advertisement. 3.1 It has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy been decided by this Tribunal in several cases wherein it has been held that the amount of discount received by the appellant is infact not a taxable amount under the category of Advertising agency services . The learned advocate has relied on the following citations in this regard: 1. P Gautam vs. CST Ahmedabad [2011 (24) STR 447 (Tri-Ahmd)] 2. Euro SCG Advertisement Ltd. vs. CCEST Bangalore [2007 (7) STR 277 (Tri-Bang)] 5. We have also heard learned DR who has reiterated the findings as given in Order in Appeal. 6. Having heard both the sides and after perusal of the record of appeal, we feel that Central Board of Excise and Customs in its circular dated 23.8.2007 has very categorically clarified that the activity of merely canvassing advertisement for publishing on commission basis will not fall under the category of advertisement agency service and since the Show cause notice has demanded the Service Tax under the category of Advertising agency services falling under section 65 (105)(e) and therefore we feel that ab initio demand of service tax under the category of Advertising agency services is without ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 (4) S.T.R. 136 (Tri.)] All passed by the same Bench, in an identical issue wherein the Bench had held in favour of the assessees. 5. Learned departmental representative reiterates the findings of the lower authorities and submits that they are liable to pay the service tax as confirmed. 6. After hearing both sides for some time on the stay petitions, we find that the appeals themselves could be disposed of as a Coordinate Bench of the Tribunal has taken the view in an identical issue. In view of this, the stay petitions filed for the waiver of the pre-deposit of the amounts involved are allowed and appeals themselves are taken up for disposal. 7. On perusal of the impugned orders, we find that in para 8, learned Commissioner (Appeals) has recorded the following findings. 8. The whole issue revolves around the question as to whether service tax is leviable on the discounts/incentives that the appellants (an advertising agency) receive from the print media for the advertisements that the former get published on behalf of clients. The argument advanced by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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