TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 1051
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....ibunal is correct in setting aside the demand of service tax for the period beyond the normal period of limitation prescribed under Section 73 of the Finance Act on the ground that the department was aware of the 'SLOT SALE AGREEMENT' entered into by the first respondent with M/s.Vijay Broadcasting Company (P) Limited? (ii) Whether the Tribunal is justified in law in vacating the penalties imposed under Sections 76 and 78 of the Finance Act, 1994 on the ground that the issue involved is predominantly and legally interpretative in nature? 3.1. The facts in a nutshell are as under: On 1.8.2001, the first respondent entered into a Slot Sale Agreement with M/s.Vijay Broadcasting Company (P) Ltd., (for brevity, the Broadcasting Company ) the owner of the channel Vijay TV . The first respondent was buying broadcasting time from the Broadcasting Company and selling slots thereof to various clients, namely sponsors of television programmes, who wanted their advertisements to be shown to the public. 3.2. Consequent to the investigation conducted by the Headquarters Preventive Unit, Chennai-II Commissionerate, which was a result of exchange of series of correspondence between the ....
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....d they have rendered themselves liable for penalty under Section 76, 77 & 78 of the said Act, as amended. 14. Now, therefore M/s.Vijay Television Private Limited are hereby required to show cause to the Commissioner of Service Tax, Service Tax Commissionerate, No.692, MHU COMPLEX, VI Floor, Anna Salai, Nandanam, Chennai 600 035, within thirty days from the date of receipt of this notice as to why- (i)the services rendered by VTPL of programme selection, programme scheduling and causing the said programmes to be telecast should not be classified under the category of Broadcasting service as per Section 65(15) of the Finance Act, 1994, as amended. (ii)VTPL should not be treated as Broadcasting Agency or Organization as per Section 65(16) of the Finance Act, 1994, as amended, for having rendered such services as programme selection, programme scheduling, causing the said programmes to be telecast, sale of time slots & sale of Advertisements. (iii)A sum of Rs. 6,16,28,954/- (details as per Annexure-II) being the service tax on the taxable service Broadcasting should not be demanded from them for the period from 16.07.2001 to 30.04.2005, as per first proviso of Section 73 of the sai....
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....s rendered by VTPL of programme selection, programme scheduling and causing the said programmes to be telecast under the category of Broadcasting service as per Section 65(15) of the Finance Act, 1994, as amended. (ii)I also hold that VTPL should be treated as Broadcasting Agency or Organization as per Section 65(16) of the Finance Act, 1994, as amended, for having rendered such services as programme selection, programme scheduling, causing the said programmes to be telecast, sale of time slots & sale of Advertisements. (iii)I demand a sum of Rs. 6,16,28,954/- (Rupees Six Crores sixteen lakhs twenty eight thousand nine hundred and fifty four only) being the service tax on the taxable service Broadcasting from VTPL for the period from 16.07.2001 to 30.04.2005, as per first proviso of Section 73 of the said Act, read with Section 68 of the said Act and Rule 6 of the said Rules. (iv) I demand Education Cess of Rs. 3,60,794/- (Rupees Three lakhs sixty thousand seven hundred and ninety-four only) on the Service Tax payable by VTPL from 10.09.2004 to 30.04.2005, as per first proviso of Section 73 of the Finance Act, 1994 read with Chapter VI of Finance Act, 2004. (v)I demand interest....
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....ed by the Finance Act, 2001, with retrospective effect from 16.7.2001, programme selection, scheduling or presentation of sound or visual matter on a television channel would constitute 'broadcasting'. This position is clear from the first part of the amended definition of 'broadcasting' given under Section 65(14). M/s.Vijay Television undertook the activities of selection, production and scheduling of programmes for telecast and collected money from their sponsors/advertisers by sale of time slots for such telecast. The activity of selling time slots for the telecast of programmes, obtaining sponsorships etc. is covered by the second part of the definition of 'broadcasting'. By all these activities, they were providing a service to their clients in relation to 'broadcasting' and such service was exigible to levy of service tax. (emphasis supplied) On merits, therefore, the Tribunal held against the first respondent/ assessee. However, on the plea of limitation, the Tribunal was of the view that the Slot Sale Agreement between the first respondent and the broadcasting company was very much known to the department and in this regard, gave a specifi....
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....lties are not justifiable in the peculiar nature of the present case. Firstly, a major part of the demand is covered by the extended period which is not invocable in this case. Secondly, the dispute in this case has arisen, by and large, out of rival interpretations of the relevant provisions of Section 65 of the Finance Act, 1994. A predominantly legal issue has been agitated before us by the assessee and the Revenue. In such circumstances, according to us, it will not be justifiable to impose any penalty on the assessee. We note that, in similar circumstances, penalty was vacated by this Tribunal in the case of Zee Telefilms Ltd. (supra). (emphasis supplied) 3.7. Assailing the said order, the Department has filed this appeal. 4. We have heard Mr.V.Sundareswaran, learned Standing Counsel appearing for the department and Mr.Raghavan Ramabadran, learned counsel appearing for the first respondent. 5. The department attempts to controvert the finding of fact rendered by the Tribunal contending that the department was not aware of the Slot Sale Agreement, as the first respondent did not make it as an issue in the appeal before the Tribunal and there was no material for the Tribunal....
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....ith the Tribunal and no such plea was taken by the first respondent before the Tribunal. Failure to do so, in our considered opinion, is fatal to the appeal of the department. 9. The first question of law that has been proposed by the department is on the very face of it not a question of law, but a question of fact. To answer that question necessarily one has to delve into the facts and find out whether such material was available or not. The finding of the Tribunal, which is the final fact finding authority, cannot be overturned merely based on a plea made in the appeal by the department. This view is fortified by a decision of the Supreme Court in Kushal Fertilisers (P) Ltd. v. Commissioner of Customs & Central Excise, Meerut, 2009 (238) ELT 21 (SC). In the said decision, while dealing with Section 11-A of the Central Excise Act and the proviso thereto, which is pari materia to Section 73 of the Finance Act, 1994 and the proviso thereof, the Supreme Court held as under: 16. The order of the Tribunal having been passed on 3rd March, 2005 an appeal was maintainable to the High Court in terms of the substituted provision and not a reference. Whereas a reference could be made on a....