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TMI Blog2022 (11) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... y of 'Advertising Agency Service'. Scrutiny of the appellant's records, revealed that they purchased the time slots from electronic media for which they got agency commission and sold the same slot of time to their clients who in turn used the slot for screening the advertisements. It was further revealed that the electronic media raised bills to Appellant on the time slots sold to them and charged them service tax under the category of "Broadcasting Service". It was contended that Appellant further issued bills to their clients included the gross value of broadcasting service and the service tax charged by the electronic media. Further, it was contended that in view of definitions and provisions of section 65 of the Finance Act the activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax within the meaning of section 73A of the Finance Act, 1994. The Appellant being an advertising agency who admittedly did not provide the broadcasting services had acted only as a facilitator or a mediator in its fiduciary capacity between the broadcasters and the clients inasmuch as the Appellant had received the value of the broadcasting services as well as the service tax thereon from the clients on behalf of the broadcaster to pass on the entire amount to the broadcaster which it indeed did and the broadcasters have undisputedly deposited such amount of service tax with the Central Government. Therefore, Section 73A of the Finance Act, 1994 is not attracted in this case because the appellant had not collected and retained the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise - 2019 SCC Online CESTAT 3624 2.2 He further submits that impugned show cause notice was issued after the lapse of entire period of limitation. The information sought to be allegedly suppressed was always in the knowledge of the department as is evident from the show cause notice. The Appellant's Balance Sheet had a record of all the transaction and the department was aware that the Appellant was collecting the payments and passing them entirely to the Broadcasters. The Appellant never failed to disclose any information from the department or wilfully defrauded or suppressed any relevant facts from the department. Thus entire demand is time barred and the same is liable to be dismissed. 3. On other hand Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. (2) Where any person who has collected any amount, which is not required to be collected, from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government." It can be seen from the above reproduced provisions that the said 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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or retention is passed on the broadcasting company. 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 retaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax is on the Broadcasting company who provide the said services to the clients. 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. It is our considered view, that 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. Accordingly, the impugned order liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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