2023 (2) TMI 609

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....dvocate for the appellant and Shri M. Ambe, Learned Deputy Commissioner for the Revenue. After hearing both sides, the only issue that is to be decided by us is: whether the Revenue is correct in demanding Service Tax from the appellant on the fixed cost component as well? 3. Brief facts which are relevant, as could be gathered upon hearing both the sides and after going through the Show Cause Notice as well as the impugned Order-in-Original, inter alia, are that the appellant is engaged in producing tele-serials and programmes for broadcasting in television channels; that the appellant is paying Service Tax under the category of "Sale of Space or Time for Advertisement"; that the Revenue gathered intelligence that the appellant was not ....

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....ice Tax component on the fixed cost as well from the appellant vide Show Cause Notice dated 31.03.2009. 4. The appellant filed a detailed reply dated 02.06.2009 denying the Service Tax liability on various grounds, inter alia that in terms of the agreement between the appellant and the advertising agency, the appellant would raise invoice on the advertising agency for the telecast fee together with the tax component, which is called the fixed cost apart from variable cost together with Service Tax; that the advertising agency would thereafter make the payment directly to the television channel together with Service Tax component as well; that the appellant is only accounting the receipt in their books, for which there would be a journal ....

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.... are not in dispute. 6. Section 73(1) of the Finance Act, 1994 prompts for issuing a Show Cause Notice for the recovery of Service Tax not levied or paid or short-levied or short-paid or erroneously refunded; but however, neither in the Show Cause Notice nor even in the impugned Order-in-Original do we see any allegation as to the Service Tax not levied or not paid or short-levied or short-paid or erroneously refunded. Further, there is also no dispute either in the Show Cause Notice or in the impugned Order-in-Original of the fact that the advertising agency had remitted the Service Tax component to the Government Exchequer. Section 73(1) could be invoked when the conditions prescribed in the proviso thereunder are satisfied. From the a....