TaxTMI 
TaxTMI 
2024 (10) TMI 1739
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....tion 65(105)(e) of the Finance Act, 1994. Information was gathered that the appellant was not correctly declaring the amount which was being shown as 'exempted services', other than export, in the periodical ST-3 returns for the period 2006-07 and 2007-08. On enquiry, the department noted that during the said period, the appellant had included the total amount of 'Publicity charges' received from intermediary agencies under the category of exempted services' in the ST-3 returns, as per Trade Notice No. 47- CE(Misc-47)/96 dated 14.11.2006 issued by Central Excise Commissionerate, New Delhi. The total amount of 'Publicity charges' received from Intermediary Agencies by the appellant appeared to be liable to be included in the gross amount received by them and leviable to Service Tax. The Department alleged that the appellant had not included the total amount of 'Publicity charges' of Rs. 4,55,91,458/- received from the Intermediary Agencies during the period 2006-07 and 2007-08 in the gross value received on which the appellant had not paid service tax amounting to Rs.55,83,242/-. Accordingly, show cause notice dated 23.04.2009 was issued to the ap....
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....ty advertising agency. This advertising agency then makes, prepares, displays and exhibits the advertisement of their clients. There is no agreement or engagement between the client and the appellant. Accordingly, it is clear that the third-party advertising agencies fall under the afore-said definition and not the appellant who is merely sub-leasing the sites. In view of the aforementioned submissions, the activities performed by the appellant clearly falls under the category of 'sale of space or time for advertisement and not 'advertising agency' service. In support of his submission, learned counsel relied upon the following decisions:- • Vasantham Outdoor Advertising Pvt. Ltd. Appellant v. Commissioner of Central Excise, Madurai, 2018 SCC OnLine CESTAT 7948 • Chaya Lakshmi Creations Pvt. Ltd. v. Commissioner of Service Tax, 2017 SCC OnLine CESTAT 6348 • Zee Telefilms Ltd. v. Commissioner of C. Ex. (Appeals), Mumbai-IV, 2006 (4) S.T.R. 349 (Tri.Mumbai) • Needwise Advertising Pvt. Ltd. vs. Commr. of Service Tax, Ahmedabad, 2011 (21) STR 229 (Tri.-Ahmd) • Commissioner Of Central Excise, Ludhiana V. Azad P....
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....d that the Department had previously issued notice to the appellant and has adjudicated on the same issue of liability of service tax on receipt of publicity charges for the period of FY. 1999 to 2006. In fact, the appellant had received a favourable order from the Adjudicating Authority with respect to the similar activities undertaken by the appellant. It is a settled law that when show cause notice are issued on same issue previously, then subsequent show cause notices cannot invoke the extended period of limitation. In support of his submissions, he relied upon the following case laws:- • Caprihans India Ltd. v. Commissioner Of Central Excise, Surat, 2015 (324) E.L.T. 8 (S.C.) • Nizam Sugar Factory v. Collector Of Central Excise, A.P., 2008 (9) S.T.R. 314 (S.C.) Further, the learned counsel stated that the consideration received by the appellant were with respect to invoices raised prior to 01 May 2006, when the appellant was not liable to charge Service tax. Thus, the Appellant was not liable to discharge Service tax in respect of the said amount. Accordingly, he submitted that the appellant did not contravene Section 68 of the Finance Act. 3.4 ....
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....ed services' in ST-3 returns with an intent to evade payment of Service Tax. Hence, extended period has rightly been invoked. In the light of above, he prayed that the appeal may be dismissed. 5. We have heard the learned Counsel for the appellant and Ld AR for the department. The issue for our consideration is whether the amount received as 'Publicity charges' from intermediary agencies is liable to be taxed as Advertising Agency services. In order to appreciate the issue, we would need to refer to the definition of advertising agency service which is reproduced below: "65(3) "advertising agency" means any commercial concern engaged in providing any service connected with the making, preparation, display or exhibition of advertisement and includes an advertising consultant" The definition of the taxable service is reproduced below: "65(105) "taxable service" means any service provided or to be provided.- ...(e) to a client, by an advertising agency in relation to advertisement, in any manner,.................................................." 5.1 We note that the appellant is registered for providing services related to Advertising agency se....
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....re were only three taxable services, but later 100 services had been specified as taxable services and that since the introduction of Service Tax, number of clarifications had been issued, but it had become necessary to take a comprehensive review of all the clarifications keeping in view the changes that had been made in the statutory provisions, judicial pronouncements and other relevant factors. The relevant portion of the Master Circular, in so far as it relates to sub-contractors, is reproduced below: 999.03 / 23.08.07 A taxable service provider outsources a part of the work by engaging another service provider, generally known as sub-contractor. Service tax is paid by the service provider for the total work. In such cases, whether service tax is liable to be paid by the service provider known as sub-contractor who undertakes only part of the whole work. A sub-contractor is essentially a taxable service provider. The fact that services provided by such sub-contractors are used by the main service provider for completion of his work does not in any way alter the fact of provision of taxable service by the sub-contractor. Services provided by sub-contractors are....
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.... person, which would include a sub-contractor, providing taxable service to any person shall pay Service Tax at the rate specified. Therefore, in the absence of any exemption granted, a sub-contractor has to discharge the tax liability. The service recipient i.e. the main contractor can, however, avail the benefit of the provisions of the CENVAT Rules. When such a mechanism has been provided under the Act and the Rules framed thereunder, there is no reason as to why a sub-contractor should not pay Service Tax merely because the main contractor has discharged the tax liability. As noticed above, there can be no possibility of double taxation because the CENVAT Rules allow a provider of output service to take credit of the Service Tax paid at the preceding stage. ......................................................................................................................... 30. Thus, for all the reasons stated above, it is not possible to accept the contention of the learned Counsel for the Respondent that a subcontractor is not required to discharge Service Tax liability if the main contractor has discharged liability on the work assigned to the subcontrac....
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....e under an incorrect service. We note that in the case of Commissioner of Central Excise, Chandigarh V. Dabur India Limited [2004 (178) ELT 819 (Tri. Del)], the Tribunal held that mere wrong mention of provisions of the law did not vitiate show cause notice when all the allegations are contained in the show cause notice. In addition, in the case of Standard Industries Limited V. Commissioner of Central Excise, Mumbai [2003 (158) ELT 623], it has been held that non-mention of Rule in the show cause notice is not fatal if the facts lead to understanding of the same. The Supreme Court in Fortune Impex V. Commissioner [2004 (167) ELT A 134 (SC)] held that non-mentioning of particular section of Customs Act, 1962 would not vitiate the proceedings when allegations and charges against all the appellants were mentioned in clear terms in the show cause notice. In the instant case, we see that the show cause notice has mentioned the allegations and charges clearly. It is also established that the appellant accepted his tax liability on the said amount and began discharging his service tax liability thereafter. Hence, we hold that the there is no infirmity in the notice and the demand is vali....
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....refunded by reason of fraud, or collusion, or wilful misstatement, or suppression of facts, or contravention of any provisions of the Act or the Rules made 10. W.P. (C) 7542 of 2018 decided on 06.04.2023 thereunder with an intent to evade payment of service tax. However, the impugned show cause notice does not contain any allegation of fraud, collusion, or wilful misstatement on the part of MTNL. The impugned show cause notice alleges that the extended period of limitation is applicable as MTNL had suppressed the material facts and had contravened the provisions of the Act with an intent to evade service tax. Thus, the main question to be addressed is whether the allegation that MTNL had suppressed material facts for evading its tax liability, is sustainable. ...................................................................................................................... 41. In the facts of this case, the impugned show cause notice does not disclose any material that could suggest that MTNL had knowingly and with a deliberate intent to evade the service tax, which it was aware would be leviable, suppressed the fact of receipt of consideration for rendering an....