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2022 (9) TMI 1280
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....,048/- Rs. 75,66,415/- Rs. 1,40,51,049/ 2.1 Appellant is engaged in the manufacture of breakfast cereals and avails the CENVAT credit of excise duty paid on inputs and capital goods and service tax paid on input services used in relation to the manufacture of their final products. 2.2 The appellants entered into an agreement with M/s. Group M Media India Private Limited (GMIPL) for advertisement of their final products in various media such as TV channels. GMIPL has a division by the name of MindShare in Mumbai. GMIPL/ MindShare in turn entered into agreement with the TV channel (broadcaster) for broadcasting the advertisement of the appellants' final products. As per the agreement, the TV channels raised invoices on GMIPL/ MindShare for broadcasting charges along with service tax thereon. The invoice also mentions the appellants' name as the client i.e., the recipient of the broadcasting service. 2.3 As per the above arrangement, GMIPL raised two separate invoices on the appellants in respect of the following: (a) commission/agency fees along with service tax thereon; and (b) reimbursement of TV channel cost (broadcasting charges plus servi....
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....nial of the CENVAT Credit for same reason upto 30.06.2017 2.8 These show cause notices have been adjudicated by the impugned orders referred in para 1 above. Aggrieved appellants have filed these appeals. 3.1 We have heard Shri Gajendra Jain and Shri Rajesh Ostwal, Advocates for the appellant and Shri Sydney D Silva, Additional Commissioner, Authorized Representative for the revenue 3.2 Arguing for the appellant, learned counsel submits that • The appellants have correctly taken cenvat credit of service tax paid on the broadcasting service received from various TV channels. The sole finding given by the Commissioner in the impugned Order-in-Original for denial of cenvat credit is that the invoices issued by GMIPL are not valid documents for taking credit since GMIPL is neither taking credit on the input services nor paying the service tax mentioned in their invoices. • The appellants took credit of service tax paid on broadcasting service on the basis of invoices raised by GMIPL read with the corresponding invoices raised by TV channels on GMIPL/MindShare. The invoice raised by GMIPL on the appellants for reimbursement of TV channel cost is nothin....
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....on to deny this credit. Reliance is placed on the following decisions: • Coca Cola India Pvt. Ltd. [2009 (242) ELT 168 (Bom.)] • Novozymes South Asia Pvt. Ltd. [2015 (38) STR 204 (T)] • M.K. Industries [ 2013 (31) STR 59 (T)] • Credit cannot be denied to the appellants on the ground that the invoices on the basis of which such credit has been taken bear the address of the head office. The Head Office of the appellants was not registered as an ISD for distribution of cenvat credit during the relevant time, however, the same will only amount to a procedural lapse and such defect is remediable in nature. Reliance is placed on the following decisions: • Doshion Ltd. [2013 (288) ELT 291 (T)] affirmed by the Hon'ble High Court at [2016 (2) TMI 183 (Guj.)] and (affirmed by Hon'ble Supreme Court reported at 2015(8) TMI 439 SC • Tide Water Oil Co. (India) Ltd [2022 (2) TMI 1069 - CESTAT] • National Engineering Industries [2015 (9) TMI 1035 - CESTAT DELHI] • Samita Conductors Ltd. [2012 (278) ELT 492 (T)] • Demosha Chemicals Pvt. Ltd [2014 (34) STR 758 (T] (Refer page ....
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....der. • Hence, the entire service tax credit availed on the basis of such invalid documents by the Appellants is not admissible to them and required to be paid/ reversed from them. • In the case of Quadrant Communications Ltd v/s CCE. Pune-III [2012(26) S.T.R. 33 (Tri. Mumbai)] it has been held that: • • Paying bills of TV channels, cinema houses, hoarding suppliers, and subsequently recovering it from their clients - Agreement with client stipulating that expenses incurred on their behalf will be billed to client with commission at rate of 10% of actual cost Client paying to agency in advance for payments to be made to others - HELD : Agency was not working as pure agent of client - Agency was liable to pay Service tax on gross amount charged from their clients in respect of Advertising Agency services rendered - Plea that amount included in bills raised in addition to commission charged was reimbursement of expenses actually paid by advertising agency, rejected. • The decision in case of Zapak Digital Entertainment Ltd is distinguishable and has been distinguished Para 10 & 11 of the impugned order dated 20.06.2019 i....
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....edit. In view of the above, the issue to be decided in the present case before me is as under: a) whether the invoices issued by M/s Group M Media India Pvt. Ltd., in the name of the assessee are admissible document in terms of Rule 9(1) of Cenvat Credit Rules, 2004 and also Rule 4A(1) of the Service Tax Rules, 1994 for availing cenvat credit? b) Whether the Cenvat credit of service tax availed by the assessee on the strength of invoices issued in the name of assessee's various offices, godowns, C&F Agents without obtaining the ISD registration at said places, is admissible to the assesses. ........ 25. However, it has been alleged in the SCN that, M/S Group M Media India Pvt. Ltd., are not availing any credit of input services availed for providing services to the assessee, Also they Are neither paying service tax shown in their invoices through GAR 7 challan nor paying by utilizing credit availed. In this context I find that, as per Rule 5 of the Service Tax (Determination of Value) Rules, 2006, where any expenditure or costs are incurred by the service provider in the course of providing taxable services, all such expenditure or costs s....
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....rvice tax paid on advertising services. Even though the assessee has paid the service tax full amount to them in good faith as admitted by the assessee in their written submission, the assessee failed to produce documentary evidence in justification about discharging service tax liability of M/s Group M Media India Pvt. In view of this, I hold that the invoices/bills issued by M/s Group M Media India Pvt., to the assessee are not valid documents for availing the cenvat credit since they have not discharged service tax liability in the capacity of service provider. Hence, the entire service tax credit availed on the basis of such invalid documents by the assessee is not admissible to them and required to be paid/ reversed from them, In support my view, I rely on the decision of Tribunal Mumbai in the case of Quadrant Communications Lid v/s CCE, Pune-III (2012 (26) S.T.R. 33 (Tri.-Mumbai)] 27. further find that the decision of the Tribunal in the case of M/s Indian Oil Corporation Lid v. CCE, Mumbai-II (2014-TIOL- 1246-CESTAT-MUM), which has been referred by the assessee and stated that the same is squarely applicable in the present case. In this connection I find that the s....
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....ect documents for availing the cenvat credit, being not mentioned at Rule 9 of the Cenvat Credit Rules, 2004. Further, I find that, in terms of Rule 9(5) of the Cenvat Credit Rules, 2004, the burden of proof regarding the admissibility of the Cenvat Credit shall lie upon the manufacturer or provider of output service taking such credit. In this connection, I rely upon the decision of CESTAT, Kolkata given in the case of M/s Cement Manufacturing Company Lid., v/s CCE & ST, SHILONG [2014(1) ECS (178)(Tri-Kol.). wherein it has been held by the Tribunal that, invoices issued by the Head Office, prima facie. could not be valid/correct documents for availing the cenvat credit, being not mentioned at Rule 9 of Cenvat Credit Rules, 2004. I do not find to consider the case laws relied upon by the assessee in this regard us the same are issued prior to issue of the CESTAT, Kolkata's order referred to above. 33. In view of the above, I hold that the cenvat credit amounting to Rs. 18,54,966/- being the credit taken on the invoices issued by the Head Office without registration as Input Service Distributor, is not admissible to the assessee and required to be recovered from them al....
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....e payment made by the service provider on behalf of the recipient of service has been separately indicated in the invoice issued by the service provider to the recipient of service; (vii) the service provider recovers from the recipient of service only such amount as has been paid by him to the third party; and (viii) the goods or services procured by the service provider from the third party as a pure agent of the recipient of service are in addition to the services he provides on his own account Explanation1.-For the purposes of sub- rule (2), "pure agent" means a person who- (a) enters into a contractual agreement with the recipient of service to act as his pure agent to incur expenditure or costs in the course of providing taxable service; (b) neither intends to hold nor holds any title to the goods or services so procured or provided as pure agent of the recipient of service; (c) does not use such goods or services so procured; and (d) receives only the actual amount incurred to procure such goods or services. 4.5 In view of the above in our view the denial of the credit on the invoices of M/s Group M Media Indi....
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.... fact - that the advertising agency is merely shown as an agent of the respondent. This finding of fact is not shown to be perverse." 4.6 Distinguishing the case of Zapak in the impugned order dated 20.06.2019 in Appeal No E/87801/19, Commissioner has observed: 10. I have also carefully gone through the judgment of the Tribunal in the case of M/s.Zapak Digital Entertainment Ltd Vs. Commissioner of Service Tax, Mumbai-II [2017(49)STR 455(Tri.- Mumbai)] and relied upon by the assessee to support their contention. In the said case M/s.Zapak Digital Entertainment Ltd have provided the services of sale of space and time advertisement. They were engaged in promoting its business by placing advertisement in various forms of Media through advertising agency such as M/s. Optimum Media Solutions. The advertising agency acted as facilitator between the broadcaster and the advertiser ie M/s. Zapak, by the broadcaster was paid by M/s. Zapak Digital Entertainment Ltd. The cenvat credit was availed by M/s.Zapak Digital Entertainment on the strength of the invoices issued by the broadcaster in favour of M/s. Zapak Digital Entertainment and also containing name of the advertising agency....
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....aster on their behalf and to subsequently recover it from them. In the absence of any such documentary evidence, the Advertisement agency cannot be considered as an 'Agent' for the purpose of making payment to the Broadcaster, Accordingly, with utmost respect, I beg to differ from the views taken by the Hon'ble Tribunal in the said case and disallow the Cenvat credit availed by the assessee on the Broadcasting charges based on the invoices issued by GMIPL." 4.7 We do not find any substance in the manner in which Commissioner has sought to distinguish the case of Zapak. On perusal of the sample invoices we have already concluded that the name of the appellant appear as client (service recipient) on the invoices issued by the Broadcaster, that being so we have held that M/s. Group M Media India Pvt Ltd., is pure agent in the provision of the service. Commissioner has not recorded any finding in this order to the contrary. As observed by us earlier the issue is squarely covered by the decision of tribunal and Hon'ble Bombay High Court in the favour of the appellant. 4.8 In the case of Indian Oil Corporation Lid [2014-TIOL-1246- CESTAT-MUM)] the facts as recorded in p....
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....n getting the advertisement published in the print media (i.e. Newspapers, periodicals etc.) or the electronic media (Doordarshan, private TV Channels, AIR etc.) will not be includible in the value of taxable service for the purpose of levy of serviced tax. The commission received by the advertising agency would, however, be includible in the value of taxable service." 7. We observe that there is no dispute in the present case that the broadcasting of advertisement has been done on behalf of the appellant and the bills have also been raised on the appellant and the appellant has borne the incidence of Service Tax on the broadcasting service. Further, while passing the order dated 30.9.2013, the adjudicating authority has caused verification of the transactions undertaken by the appellant in respect of broadcasting services and advertising agency services. After verifying that the appellant had availed both the services and has also borne the incidence of Service Tax, he came to the conclusion that the appellant is rightly eligible for the benefit of the CENVAT Credit of the Service Tax paid on broadcasting service. The same ratio shall apply for the previous period also. T....
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....RA STATE, PIN 41028, KPAK Cheano 767588 22/1/12 1722 New-2011 Activity Period: Pin Code 400MAHARASHTRA] Estate No Campaign MMS2011 kpak nov-dec 2011 SN Supple Mos Rap No Producer Chan Program 1 3012167 TC UTV SOFTWARE COMMUNICATIONS SUNTV Стр ANUPALLAVA 2 2011 TC UTV SOFTWARE COMMUNICATIONS SUNTV NAGAMA LTD Amourt in Wende Rapper Thirty-Three Thousand Geves hundred Fifty-One And Palse Eighty Only Na : 22-DEC-11 Due Date: Group M Media india Private Limited Commerz, 8th Floor, International Business Park, Oberoi Garden City. Off W. E. Highway, Goregaon (East), Mumbai- 400 063 T+91 22 4239 8858 F+91 1238 8931 Day Time Spot Date Curation R Gross Chest Ch WED 12:30 30-NOV-11 15 10.000.00 15.000.00 0.00 15,750 BAY 21:30 26-NOV-11 16 1400000 21,040,00 17.852.00 B 30.000.00 6.04 300099 ment of Bing Charg 30.640.00 Total: 30,400.00 Service Brading charges 10% 3,000.00 Primary Education Cess on service Tax on Broadcasting charges 41.20 Secondary & Highe....
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....ACCM7365H PAN Based Service Tax Number: AACCM7365HST001 Category: Advertising Services Minoshare A Unit of Group M Media India Private Limited Registered Office: Commerz, 8th Floor, International Business Park, Oberoi Garden City, Off W. E. Highway, Goregaon (East), Mumbai 400 063. All Taxes and levies are charged at the prevailing rates in force. IMPORTANT: (1) Payment to be effected within 30 days (2) Interest at the rate of 18% will be charged on all the bills not settled on due date. (3) Any objection to this bill should be Media india Private Limited. raised giving specific reason within 7 days of receipt No objection will be entertained thereafter. (4) in case of dispute only Mumbai courts have Judrisdiction. (5) Payment by cross chequa/draft only in favour of Group M For Group M Media India Private Limited CHECKED BY: E.&O.E. Document 3 To, INVOICE/TAX INVOICE RESULTS INDIA COMMUNICATIONS PVT. LTD. 801,DHEERAJ. KAWAL COMPLEX, Original Bill No. 2012/1600026107 Bill Date : 30.11.2011 Due Date : 14.01.2012 VIKHROLI (W) MUMBAI 400079 LBS MARG, NR GODREJ COMPUND. MAHARASHTRA Order Ref. : NOV2011/TVBR0/00....
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....Anu Pallavi Episode No 410 Name of the Proded First Break HEINZ COMPLAN TODDLER-25 SEC COMPLAN TODDLER(TAM) GARNIER FRU SHAM PLUS OIL SHA+ OIL H GROW SACHET EDIT MTR BADAM MIX-MTR WINTER CAMPAIGN (10 SBC) ODONIL-KITNA KAATEIN KELLOGGS ALL BRAN-SCREAM Second Break MTR BADAM MIX-MTR WINTER CAMPAIGN (10SEC) AMBIPUR-AMBIPUR CAR ROMANCE KELLOGGS K PAK (K PAK 2ZZ) HEINZ COMPLAN (SHOPKEEPER 50 GM FREE) TOTAL Seconds Duration (In Seconds) 25 10 10 15 20 2228 10 30 158 15 150 OCL: COMPLAN NUTRI GROW GARNIER FRUCTIES MTR BADAM MIX,ODONIL,KELLOGGS ALL BRAN & AMBIPUR. CCL: COMPLAN NUTRI GROW,GARNIER FRUCTIES.MTR BADAM MIX,ODONIL, KELLOGGS ALL BRAN & AMBIPUR. This is to certify that the advertisement for the above product/service has/have been telecast on the aforesaid dates. For Sun TV, Робереривный AUTHORISED SIGNATORY Sun TV Network Lid Document 5 To, UTV INVOICE TAX INVOICE RESULTS INDIA COMMUNICATIONS PVT. LTD. 801.DHEERAJ. KAWAL COMPLEX. LBS MARG, NR GODREJ COMPUND, VIKHROLI (W) MUMBAI 400079 MAHARASHTRA Order....