AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 598
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....td. London and Nimbus Sports International Pte. Ltd., Singapore. BCCI also entered into agreements with M/s Hawkeye Innovations Ltd., U.K. and IMG Media, London and IMG, South Africa for coverage of Indian Premier League Matches. As per these agreements, the service providers mentioned above, who were non-residents, were required to produce audio-visual coverage of the cricket matches conducted by BCCI and the digitalized images of the coverage were uploaded for broadcasting for the viewers of the cricket match all over the world. The appellant paid consideration for the services received to these non-resident service providers. The department was of the view that the services received by the appellant came within the purview of "programme producer's service" and, therefore, the appellant was required to discharge service tax liability on reverse charge basis under Section 66A of the Finance Act, 1994 or under Rule 2(1)(d)(iv) of Service Tax Rules, 1994, read with section 66 of the said Finance Act. Accordingly, show cause notice dated 15.10.2009 [for the period 2004-05 to May, 2009], 31.5.2010 [for the period 15-4-08 to 17-4-2010], 23-10-2010 [ for the period June, 2009 to Mar....
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...., therefore, the same would not fall within the purview of 'programme production'. Similarly, the service received from IMG S.A. pertains to booking of hotel accommodation and transport services for the cricket matches conducted in South Africa and, therefore, the same also would not fall within the purview of 'programme producer's services'. 4.5 The demand is time barred. The show cause notices have been issued invoking the extended period of time. The appellant bonafidely believed that the services received did not fall under any of the taxable service category. Therefore, there is no suppression or wilful mis-statement of facts on the part of the appellant attracting extended period of time for confirmation of tax demand. Reliance is placed on the decisions in the case of Cosmic Dye Chemicals [1995 (75) ELT 72 (SC)], Chemfar Drug and Liniments [1989 (40) ELT 276 (SC) and Pushpam Pharmaceuticals Co. [1995 (78) ELT 401] in support of this contention. 4.6 The learned consultant also submits that penalties have been imposed both under Sections 76 and 78 of the Finance Act, 1994. The issue whether penalties can be imposed under both these sections has been refer....
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....ity with the specifications mentioned in sub-clauses (a) to (g) thereof. Clause 4 of the agreement deals with the other obligations of the producer and clause 5 deals with personnel who should be engaged for production. Clause 6 deals with production and technical specifications relating to the equipment, use of the equipment, camera and key camera positions and so on. Clause 9 deals with assignment of the copyright by the producer to BCCI in respect of all the sound recordings, broadcasting and transmissions and son. For the services rendered, clause 10 of the agreement specifies the consideration to be paid by BCCI to the producer for the production of the feed which includes all statutory taxes and charges, import duties and tariffs on imported materials and equipment, rise and fall, relevant award costs and allowances for the personnel. 6.3 Thus, from the terms of the contracts entered into by BCCI, it is amply clear that the non-resident service providers were producing a programme for and on behalf of BCCI. The question is whether this activity would come within the definition of "programme producer services". The taxable event is programme producer service as defined in the....
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....ector in charge of sound desk decide the sound to be transmitted to Director's vision desk from where images are transmitted. (vi) The BCR has action replay unit. The images in this unit is also transmitted to Director's vision desk. The images shown through these camera are given colour code. The Director in charge of vision unit keeps on continuously instructing the vision desk in charge the colour code. The images shown in the said colour code is finally telecasted. (vii) The BCR has hawk eye unit which tracks each ball played. (viii) The BCR has graphic unit, which produces graphic of average run rate, standing of various teams, score board etc. and as per instruction of Director in charge of vision desk, it is telecasted. (ix) The sound and images are sent for recording in to video tape recorder and are also simultaneously sent for converting into audit video signals and sent out for up linking to satellite uplink unit. (x) The finally vended programme is transmitted to OB van stationed in the stadium from where it is sent to satellite for further transmission to househo....
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.... entered into with IMG S.A., the said agreement was for booking of hotel accommodation and transport of personnel in connection with the recording of cricket matches to be recorded by IMG U.K. These services per se will not qualify as 'programme producer's services' and they are in the nature of supporting services. The contract was a separate one and the service provided and received consisted of booking of hotel accommodation and arrangements for transportation. Therefore, though these services were in connection with the production agreement with IMG Media, U.K. for recording of matches, they cannot be considered as production of any programme. The said service availed by the BCCI by sub-contracting the work to a different service provider would not come within the purview of "programme producer's services" and therefore, the demand of service tax on the consideration paid for the services under the category of programme producer's services service cannot be sustained in law. Therefore, demand to this extent has to be set aside. 6.8 The appellant has contended that since the definition of "programme" refers to audio or visual matter, if recording is done of ....
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....y in accordance with this agreement." Clause 2.3 specifically provides that the rights of the Producer under clause 2.1 do not include the right to transmit the feed or both save to the extent necessary to perform its obligations hereunder including but not limited to the delivery of the feed to the on-site gateway and to the producer's production facility". As per clause 3.3 the producer must deliver the feed for each match to the on-site gateway. By definition, on-site gateway is the satellite uplink point at each venue. From the gateway the broadcaster licenced by BCCI or its media rights partner exhibits the feed or part thereof within their specific licenced territory. Thus the third party involved is the Broadcaster authorized by BCCI. From the specific clauses mentioned in the agreement as discussed above, the programme has to be delivered to the Broadcaster authorized by BCCI. In view of the factual position as discussed above, we do not find any merit whatsoever in the contention that there is no third party involved and therefore, the production of the programme is not on behalf of BCCI. Consequently the reliance placed by the appellant on various decisions completely....
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....n the absence of taking a registration and in the absence of filing any returns statutorily prescribed, it is the date of knowledge of the department that is relevant for determination of time limit. In Commissioner of Central Excise, Visakhapatnam vs M/s Mehta & Co. - 2011-TIOL-17-SC-CX, the hon'ble apex court has held as follows:- "24. The cause of action, i.e., date of knowledge could be attributed to the appellant in the year 1997 when in compliance of the memo issued by the appellant and also the summons issued, the hotel furnished its reply setting out the details of the work done by the appellant amounting to Rs. 991.66 lakhs and at that stage only the department came to know that the work order was to carry out the job for furniture also. A bare perusal of the records shows that the aforesaid reply was sent by the respondent on receipt of a letter issued by the Commissioner of Central Excise on 27.2.1997. If the period of limitation of five years is computed from the aforesaid date, the show cause notice having been issued on 15.5.2000, the demand made was clearly within the period of limitation as prescribed, which is f....
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.... we note that the decision on penalties has been rendered by a High Court and this Tribunal does not have jurisdiction to sit on judgment over a decision rendered by a High Court. Therefore, the reference made by a single Member to a Larger Bench of the Tribunal is of no consequence for imposition of penalties unless and until the decision of the Hon'ble High Court is overruled by the Hon'ble Supreme Court. Further we note that in the decision rendered by the hon'ble Karnataka High Court, no reasons have been given as to why penalty is not imposable under both sections 76 and 78 for the period prior to 10-5-2008. The hon'ble high Court of Karnataka has merely observed that - "it is now well settled that the liability cannot be imposed both under sections 76 and 78". This is only an obiter dictum and does not lay down any ratio. In these circumstances, we do not find any infirmity in the imposition of penalties both under Sections 76 and 78 of the Finance Act on the appellant for the period prior to 10.5.2008. 7. In view of the factual and legal analysis as above, we conclude as follows:- &nb....