TaxTMI 
TaxTMI 
2010 (4) TMI 463
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....ervices under BAS by the Commissioner from 1-7-2003 in the Order-in-Original No. 3/2006 Adj. ST, dated 16-3-2006. On appeal against this, the Commissioner (Appeals) remanded the case to the original authority to pass an order after adhering to principles of natural justice. The refund claim consequently was resubmitted on 29-8-2007. A notice asking them to show cause why the claim should not rejected was issued on 12-9-2007. The Assistant Commissioner of Service Tax passed an order No. 11/ 2007-ST-R, dated 26/27-11-2007 rejecting the claim. Aggrieved by such an order passed by the Adjudicating Authority, appellants preferred an appeal to the learned Commissioner (Appeals). Learned Commissioner (Appeals) after granting an opportunity of personal hearing and considering the submissions made during personal hearing and rival submissions during hearing, did not accept the contentions raised by the appellant in their appeal and reject the appeal filed by the appellant and upheld the Order-in-Original. Hence, this appeal. 3. Learned Counsel appearing on behalf of the appellant submits that the refund claim filed by the appellant arises on the ground of two different activities for whi....
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....d down by the Hon'ble Supreme Court for something to be goods. He referred the following case-laws : (i) BSNL v. Union of India [2006] 145 STC 91/3 STT 245. (ii) Tata Consultancy Services v. State of A.P. [2004] 137 STC 620. Besides, the very fact that Parliament has used the words "sale of space" in section 65(105)(zzzm) is by itself sufficient to infer that "space" has been treated as something distinct from "goods". has treated the activity of making available of space as a sale. Besides, when even the Flashing of Advertisement is not a service as held by the Hon'ble Madras High Court in Advertising Club v. CBEC 2001 (131) ELT 35/[2007] 6 STT 196, the mere provision of Space by UEL cannot confer upon them the status of a service provider. B - Newspaper Promotion 3.6 It is submitted that Newspaper is sold to the reading public as a medium containing information regarded as news. It is purchased only for acquainting oneself with current news. He cited the following case-law : Indian Express (P.) Ltd. v. State of Tamil Nadu [1987] 67 STC 474 (SC). 3.7 It is submitted that the appellant can only be viewed as someone who has promoted/marketed/brought about ....
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....time by the client. The word "belonging" found in section 65(19)(i) shows that the client must have ownership over the subject-matter of the promotion/marketing/sale. The word "provided" will have to be read noscitur a sociiss. Following case-laws are cited : (i) Acqueous Victuals (P.) Ltd. v. State of UP AIR 1998 SC 2278. (ii) State of Rajasthan v. Sripal Jain AIR 1963 SC 1323. 3.12 It is submitted that in view of the following contextual compulsions, the expression "goods" found in section 65(19) must be interpreted as excluding newspaper : (i) Article 19(1)(a) protects freedom of press (ii) Although Entry 48 of the provincial list to the Government of India Act 1935, enabled the provinces to tax sale of newspaper, the Constitution of India, 1950 has conferred that power only upon the Parliament under article 246 read with Entry 92 of List-I of the Seventh Schedule to the Constitution of India, 1950. Parliament has also not exercised that power to tax the sale of newspapers or advertisements in it. (iii) Parliament has chosen not to impose customs duty on the import of newspaper. (iv) Parliament has chosen not to impose excise duty on newspaper. (v) Even s....
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....tted that importantly, as the Act is a taxing statute, section 65(19)(i) and section 65(19)(ii) will have to be strictly construed. The language must wholly govern the interpretation. There is no room for any intendment. The economic results sought to be obtained is not relevant for interpretation. Words cannot be added to achieve the spirit or intention of the Legislature. The following case-law was cited: Muthuram Agarwal v. State of Madhya Pradesh AIR 2000 SC 109. In any view, if two views are possible, a construction which supports the taxpayer must be adopted. He cited the case-law in Manish Maheshwari v. Asstt. CIT [2007] 3 SCC 794. 3.17 It is submitted that as at the time the appellants undertook the promotional activity, a newspaper as defined by section 1 of the Press and Registration of Books Act, 1867, was not in existence, the appellants could not have been considered to have rendered a service in relation to the promotion of a newspaper. 3.18 Thus, the promotion that the appellants undertook was neither a promotion of goods nor a newspaper. The appellants can only be looked upon as having promoted the Future Business of their clients. That is not s....
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....fixed to that part of the definition which excluded sale of space in "print media" but was only used before the description of the service. The result is that while the taxing part was expanded, the exclusion part is restricted. Therefore, the first argument is not acceptable. There is no need to apply the principle of harmonious construction when there is no discord between section 65(105)(zzzm) and section 65(19). Secondly, it is argued that since neither they were promoting or marketing any goods produced, provided or belonging to their client viz., UEL or any service provided by UEL [as they (UEL) were not providing any service] no incidental or auxiliary service or provision of service on behalf of the client could have been rendered attracting provisions of section 65(19)(iv)/65(19)(vii). It was also stated that while the notice proposes classification under certain sub-section, it was classified under another sub-section. I have to say that the notice only observes that the services appears to fall under section 65(19)(iv)/65(19)(vii). The original authority made no observations on the various sub-sections and classification (nor was he required to), except to state that ....
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.... us that the appellant has been selling the space or providing the services in relation to the sale of space to M/s. UEL during the period 9-7-2004 to 28-2-2006. Since, the activity of services in relation to sale of space has come into the statute from 1-5-2006, we find that the said activity cannot be taxed by the authorities prior to that date. It flows that the service tax liability discharged by the appellant is not a tax which has been collected by the lower authorities in accordance with law. We find that the proposition put forth by the learned Counsel that after specific category is introduced as a taxable service in the statute from a specified date, the said activity could not have been a taxable entity or technical entry in any other services prior to that date is correct. This issue is squarely settled by the following decision of the Tribunal : (i) BCCI's case (supra) (ii) Geo Foundations & Structures (P.) Ltd.'s case (supra) (iii) Thriveni Earthmovers (P.) Ltd.'s case (supra) 7.3 In view of the above findings, we hold that the appellant is not liable to pay any Service Tax on the category of Space Selling for the selling of space levied under the category....