2018 (9) TMI 1070

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....t of Rs. 15,76,606/- (Rupees Fifteen Lakh Seventy Six Thousand Six Hundred and Six only) being the differential Service Tax payable in respect of "Business Auxiliary Service" as detailed in the Annexure should not be demanded from them under Section 73(1) of the Finance Act, 1994 for the period February 2010 to January 2011; II. Interest at appropriate rate should not be demanded from them under Section 75 of the Act on the above said demand of Service tax, Education Cess and Higher Education ces from the due date of payment till the date of actual payment of such Service tax, Education Cess and Higher Education Cess; III. Penalty under Section 76 & 77 of the Finance Act, 1994 should not be imposed on them for the contraventions and a....

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....te appeared for the assessee. 3. The contentions of the Ld. DR, Shri. A. Cletus, are summarized as below: (i) The assessee is engaged in promoting business of the media and for which he is receiving commission, (ii) The activities of the assessee are clearly covered by the definition of Business Auxiliary Service (BAS), (iii) The Commissioner (Appeals) has not appreciated CBEC Circular No. 87/05/2006 - ST(F. No. 137/128/2006-CX.4) that has clearly laid out the same situation in respect of Motor Vehicle Dealers which is also applicable to the facts of this case, (iv) The case laws relied upon by the Ld. Commissioner (Appeals) are not applicable to issue on hand, etc. 4.1 Per contra, Shri. N. Viswanathan, Ld. Advocate appear....

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....ed fact that in many cases, the assessee passed on a portion of the discount received to respective clients and the service tax was remitted by the assessee on the amount retained. In this scenario, therefore, we find that there is no service-provider - service-receiver relationship between the assessee and the media and therefore, we agree with the finding of the lower appellate authority that the media is not the customer of the assessee nor could the assessee be considered as a commission agent of the media. 5.1 We also find that our above view is supported by M/s. Thangammal Traders (supra) and the decision relied on by the Commissioner (Appeals); the relevant paragraph of M/s. Thangammal Traders (supra) is extracted below: "3. Th....