2014 (9) TMI 180 - AT - Service Tax

Tribunal rules volume discounts and rate differences not taxable under Business Auxiliary Service.

GREY WORLDWIDE (I) PVT LTD. Versus COMMISSIONER OF SERVICE TAX, MUMBAI

The Tribunal set aside the service tax demands on volume discounts, write back amounts, and rate differences under Business Auxiliary Service (BAS), ... Advertising Agency Services - demand is on account of volume discount received from these media, write back of the amount in respect of payments not claimed by the print/electronic media and the rate difference between the amount actually charged from the advertiser and the amount paid to the media. - Held that:- These payments are made only as a gratuitous payments for the advertisements placed on the media. There is no contractual obligation between the advertising agency and the media for provision of any services. In the absence of such a contractual obligation, it is difficult to accept the Revenue's contention that on the incentives received, the appellant is liable to service tax under BAS. Decision in the case of P. Gautam & Co. [2011 (9) TMI 392 - CESTAT, AHMEDABAD] and Euro RSCG Advertising Ltd. [2006 (12) TMI 61 - CESTAT, BANGALORE] followed - Decided in favor of assessee. Issues Involved:1. Service tax demand on volume discount, write back amounts, and rate difference under 'Business Auxiliary Service' (BAS).2. Service tax demand on services received from outside India on reverse charge basis.Detailed Analysis:1. Service Tax Demand on Volume Discount, Write Back Amounts, and Rate Difference under BAS:The appellant, an advertising agency, placed advertisements in print/electronic media on behalf of clients and discharged service tax on agency commission. The demand for service tax arose from volume discounts received from media, write back amounts, and rate differences. The department argued these amounts should be taxed under BAS, claiming the appellant promoted the media's business.The appellant contended that volume discounts were gratuitous payments without any contractual obligation to render services to the media. The discounts were incentives based on the volume of advertisements placed, not for promoting the media's business. The write backs were amounts not claimed by the media and were not consideration for services rendered. The rate differences were trade margins and not service charges.The Tribunal consistently held in previous cases (Euro RSCG Advertising Ltd., P. Gautam & Co., and Tradex Polymers Pvt. Ltd.) that such incentives and discounts are not taxable under BAS as they are not payments for services rendered. The Tribunal reiterated this view, stating that without a contractual obligation to provide services to the media, the amounts received cannot be taxed under BAS. Therefore, the service tax demands on volume discounts, write back amounts, and rate differences were set aside.2. Service Tax Demand on Services Received from Outside India on Reverse Charge Basis:The appellant had already paid service tax along with interest for services received from abroad on or after 18/04/2006. For the period before 18/04/2006, the appellant argued that the demand was not sustainable based on the Indian National Shipowners Association case, where it was held that service tax on reverse charge basis applies only from 18/04/2006, when Section 66A was inserted in the Finance Act, 1994.The Tribunal agreed with the appellant, stating that the service tax demand for the period prior to 18/04/2006 does not sustain. Thus, the demands for the previous period were set aside.Conclusion:The Tribunal set aside the impugned orders, allowing the appeals with consequential reliefs. The service tax demands on volume discounts, write back amounts, and rate differences under BAS were not sustainable, and the demands for services received from outside India prior to 18/04/2006 were also dismissed.