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TMI Blog2023 (2) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... trality. HELD THAT:- Section 73(1) of the Finance Act, 1994 prompts for issuing a Show Cause Notice for the recovery of Service Tax not levied or paid or short-levied or short-paid or erroneously refunded; but however, neither in the Show Cause Notice nor even in the impugned Order-in-Original do we see any allegation as to the Service Tax not levied or not paid or short-levied or short-paid or erroneously refunded. Further, there is also no dispute either in the Show Cause Notice or in the impugned Order-in-Original of the fact that the advertising agency had remitted the Service Tax component to the Government Exchequer. Section 73(1) could be invoked when the conditions prescribed in the proviso thereunder are satisfied - From a perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CHNICAL) Smt. Radhika Chandrasekhar, Learned Advocate for the Appellant Shri M. Ambe, Learned Deputy Commissioner for the Respondent ORDER This appeal is filed by the assessee against the Order-in-Original No. 19/2010-S.Tax/Ch.IV dated 24.11.2010 passed by the Commissioner of Central Excise and Service Tax, Chennai. 2. Heard Smt. Radhika Chandrasekhar, Learned Advocate for the appellant and Shri M. Ambe, Learned Deputy Commissioner for the Revenue. After hearing both sides, the only issue that is to be decided by us is: whether the Revenue is correct in demanding Service Tax from the appellant on the fixed cost component as well? 3. Brief facts which are relevant, as could be gathered upon hearing both the sides and after going throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had only paid the Service Tax on the variable cost which was nothing but the cost received from the advertising agency; that the appellant had excluded the fixed cost collected from the advertising agency, which was nothing but the slot fee payable to the television channels for telecasting the programme and that therefore it was sought to be recovered, the Service Tax component on the fixed cost as well from the appellant vide Show Cause Notice dated 31.03.2009. 4. The appellant filed a detailed reply dated 02.06.2009 denying the Service Tax liability on various grounds, inter alia that in terms of the agreement between the appellant and the advertising agency, the appellant would raise invoice on the advertising agency for the telecas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s negated the arguments of the appellant holding that the collection of fixed cost / telecast fee was not made known to the Revenue as the same was not reflected in the periodical returns filed by the appellant which amounted to withholding of information which, according to him, was deliberate. 5. We have considered the rival contentions very carefully. Facts are not in dispute. 6. Section 73(1) of the Finance Act, 1994 prompts for issuing a Show Cause Notice for the recovery of Service Tax not levied or paid or short-levied or short-paid or erroneously refunded; but however, neither in the Show Cause Notice nor even in the impugned Order-in-Original do we see any allegation as to the Service Tax not levied or not paid or short-levied or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een disputed either by the advertising agency or even by the Revenue and this is precisely the reason for the Revenue not to urge that the Service Tax was not paid, but for only quoting Section 73(1). It is worthwhile here to note the observations at paragraph 9.3 of the Order-in-Original wherein the Adjudicating Authority himself has acknowledged that the Service Tax having been paid by the advertising agency, the appellant could enjoy the facility of CENVAT Credit. This, according to us, clearly tantamounts to the acceptance of the fact of payment of tax and the fact that the appellant is eligible to avail the CENVAT Credit sufficiently establishes that it is a revenue neutral situation. 8. In view of the above discussions, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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