9911796707
TMI Blog2023 (8) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... e into effect on 16.07.2001. On seeking explanation, the appellant vide letter dt. 23.04.2010 informed the department that the appellant was not a broadcasting organization or agency and that they were engaged only in the uplinking of TV programme produced by SS Music and Sur Sangeeth Channel which were owned by M/s.Fortune Media Pvt. Ltd. and M/s.Mindscape Creations Pvt. Ltd. respectively. They also cited Board's circular dt. 09.07.2001 and contended that mere uplinking cannot be classified under Broadcasting Service. 2. On scrutiny of records, it was found that the appellant was providing broadcasting service also and that two channels referred as above were initially owned by the appellant company and subsequently transferred under the name of other companies. The appellant had obtained permission from the Ministry of Information and Broadcasting vide letter dt. 03.06.2003 in which it was stated that appellant owned a television channel under the name & style "Coxwaine Channel". On 08.10.2004, appellant obtained permission from the Ministry of Information & Broadcasting for changing the name of the channel into "SS Music". It was also seen that the permission letter dt. 11.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also. Later realizing that they are not liable to pay service tax under 'Broadcasting Service' as their activity was only uplinking of programmes, the appellants surrendered the service tax registration for broadcasting services with the department on 29.10.2004. After much exchange of communications between the appellant and the department and on the request of the Range superintendent, the appellant obtained legal opinion as to whether their services would fall under Broadcasting Agency Service. They obtained legal opinion that on the basis of the clarification issued by the Board vide its circular dt. 09.07.2001, their activity would not attract levy of service tax under Broadcasting Service and the uplinking services would attract levy of service tax under Business Support Service w.e.f. 01.05.2006. Accordingly, the appellant registered for paying service tax under BSS and has been paying service tax w.e.f. 01.05.2006 under BSS on the uplinking charges received by them. It is contended by the counsel that in the SCN, the department itself is not sure as to whether the activity would fall under Broadcasting Service and it is treated that the appellant ought to have paid at least ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into back-to-back agreements with the above broadcasting companies for undertaking uplinking services and these broadcasting companies were also registered with the service tax authorities under the category of Broadcasting Service. These broadcasting companies (M/s.Fortune Media Pvt. Ltd. and M/s.Mindscape Creations Pvt. Ltd.) were accordingly discharging service tax on the entire receipts. The appellant company had provided the program uplinked by third party and telecasting for public view by these companies only and they did not deal with the clients for booking various commercial or allotment of time slot. Therefore, only these companies can be considered as broadcasters. The appellant had only provided uplinking services as per the permission granted to them by MIB. This is evident from the license granted to them as it is only for uplinking services and not for broadcasting services. It is submitted that the department has issued SCN under Broadcasting Service due to the misconception that the appellant is rendering broadcasting services also. 5. Ld. Counsel submitted that there are factually incorrect allegations in the SCN. It is alleged in the SCN that the appellant or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of suppression established by the department to invoke the extended period. It is submitted that there were repeated communications between the appellant and the department as to whether their activity would fall under 'broadcasting service' and after which they had surrendered their registration for 'broadcasting service' and later had obtained registration under Business Support Service. For this reason, there was no willful suppression of facts with intent to evade payment of service tax on the part of the appellant and the show cause notice issued invoking the extended period therefore cannot sustain. The Ld. Counsel prayed that the appeal may be allowed. 9. Ld. A.R Ms. Anandalakshmi Ganeshram appeared and argued for the Department. It is submitted that the original authority had carefully considered the documents and the submissions made by the appellant before confirming the demand. Ld. A.R adverted to para 11 of the findings in the impugned order and submitted that the show cause notice was issued proposing to demand the service tax of Rs.1,03,34,893/- for the period from 2005-06 to 2009-10. However, the appellant had put forward the contention that the said amount receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear from the above account head that appellant has been collecting fees for allotment of airtime. Further "Notes on Accounts" for the year ending 31st March 2006 under "Segment Reporting" it is mentioned that "The Company is engaged in the business of Broadcasting". This document is considered as the only reportable business segment as per accounting Standard-17. The appellant has not been able to establish that they were providing only uplinking services. The demand quantified has not included the value that has been subjected to service tax under BSS. 11. Ld. A.R submitted that one of the arguments put forward by appellant is that other broadcasting companies use uplinking services of the appellant and that appellant has incurred expenses for uplinking services only. On perusal of the Notes on Accounts for the year ending 31.03.2006 under the head Expenses in Foreign Currency it is seen mentioned as expense of Rs.62,10,000/- towards renting of satellite. Such expenses towards renting of satellite can only be incurred for the purpose of broadcasting. 12. The circular dt.09.07.2001 adverted to by the Ld. Counsel was countered by the Ld.AR, by submitting that the said circular was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Ltd. - 2014 (35) STR 927 (Tri.-Del) the Tribunal had occasion to analyse the ingredients of definition of 'Broadcasting Service' prior to 16.06.2005 and after. The relevant para reads as under : "26. We have heard both sides. Major issue to be decided in these appeals is whether Appellant No. 1 and No. 2 are liable to pay Service Tax as recipients of broadcasting Service under reverse charge mechanism. Broadcasting and Broadcasting agency or organisation has been defined under Section 65(14) and Section 65(15) as under (prior to 2005). "65(14) Broadcasting has the meaning assigned to it in clause (c) of Section 2 of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (25 of 1990) and also includes programme selection, scheduling or presentation of sound or visual matter on a radio or a television channel that is intended for public listening or viewing, as the case may be; and in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme or collecting the broadcasting charges on behalf of the said a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed in India or any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting the broadcasting charges or permitting the rights to receive any form of communication like sign, signal, writing, picture, image and sounds of all kinds by transmission of electro-magnetic waves through space or through cables, direct to home signals or by any other means to cable operator including multisystem operator or any other person on behalf of the said agency or organisation." Taxable service is defined under [Section] 65(105)(zk) of the Finance Act as under :- "Any service provided or to be provided to a client, by a "broadcasting agency or organization" means any agency or organization in relation to broadcasting in any manner and, in the case of a broadcasting agency or organization, having its head office situated in any place outside India, includes service provided by its branch office or subsidiary or representative in India or any agent appointed in India or any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Limited. Sir, The undersigned is directed to refer to your letters dated 10.07.2003 and 31.07.2003, seeking permission for uplinking "SUR SANGEETH" channel (in digital mode) from India through VSNL, Chennai. 2. The undersigned is directed to convey permission to M/s.Coxswain Technologies Ltd. to uplink their "SUR SANGEETH" channel in Hindi language (in digital mode) from India through VSNL, Chennai using INSAT satellite 2E, for a period of ten years, subject to the following:" 21. The permission letter dt. 08.10.2004 reads as under : "Subject : Permission to change the name of the channel from "COXSWAIN" to "SS Music" - M/s.Coxswain Technologies Ltd. Sir, This is with reference to your letters dated 9.8.2004, 13.9.2004 and 16.9.2004 requesting for the change of your channel name from "COXSWAIN" to "SS MUSIC" 2. In continuation of this Ministry's letter of even number dated 3rd June, 2003 whereby permission was conveyed to M/s.Coxswain Technologies Ltd. to uplink your TV channel namely "COXSWAIN" from India through VSNL, Mumbai, the undersigned is directed to convey no objection of this Ministry to change he name of your channel from "COXSWAIN" to "SS MUSIC". All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 'Broadcasting Service'. The appellant has relied upon an application made for trade mark. On the basis of this document, it is argued that the said application for trademark ('SS') has been filed by M/s.Fortune Media (P) Limited and would indicate that the channel 'SS' is owned by M/s.Fortune Media (P) Ltd. and not the appellant. The application was given on 29.11.2001. The present status of the application shows 'abandoned'. Merely because an application was given by M/s.Fortune Media (P) Ltd. it cannot be said that the said channel belonged to them and is discussed in this order. The permission letters submitted before the competent authority for issuing licence shows that these channels 'SS Music' and 'Sur Sangeeth' are owned by appellant. On merits, we do not find any grounds to accept the contention of appellant that they are not rendering any broadcasting services. 24. Ld. Counsel has argued on the ground of limitation also. It is the case of the appellant that they have been registered with the service tax and have been filing returns from 2002 onwards. It is argued by the Ld. Counsel for appellant that after obtaining legal opinion they had surrendered the regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the guise of uplinking tried to avoid payment of service tax. Only after detailed investigation and on unearthing various permissions and letters the department could finalise the extent of service tax liability. Therefore it is proved beyond doubt that the notice has deliberately misled the department with the intention of evading the payment of the tax under "Broadcasting Services". 26. The above view of the original authority that the appellant has played clever hide and seek game with the department is brought out on perusal of the various documents like the permission letters, agreement etc. The appellant has taken up the contention that they were providing only uplinking services and that the channels in the name of 'SS Music' and 'Sur Sangeeth' belong to M/s.Fortune Media Pvt. Ltd. and M/s.Mindscape Creations Pvt. Ltd. respectively. As already discussed, in the letters submitted before the MIB for obtaining license they have stated that they own 'Coxswain' channel; the name changed to 'SS Music'. It is also stated that they own 'Sur Sangeeth'. The appellant has been denying the ownership of these channels all along. The documents/records placed before us show that M/s.For ..... X X X X Extracts X X X X X X X X Extracts X X X X
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