Commissioner Of Service Tax-I vs Ms Katrina R. Turcotte
- CitationAPPEAL No.ST/375/11-Mum
Ratio decidendi
The rule this decision rests on
The Revenue's appeal is dismissed because the identical order-in-original was already set aside in the respondent's own earlier appeal (ST/387/11), so the same reasoning applies here. The principle the Tribunal rests on is that where an assessee has appointed an agent who receives the client payments and discharges the service tax liability on the assessee's behalf, the service tax liability is discharged through that agent, and it is not defeated merely because the agent paid the tax under a different (incorrect) head of service; hence no show-cause notice or adjudication is warranted where the liability has in substance been discharged.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No.ST/375/11-Mum (Arising out of Order-in-Original No.46-48/STC-I/BR/10-11 dated 15/3/2011 passed by Commissioner of Service tax - I, Mumbai) For approval and signature: Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) 1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the :No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================
Commissioner of Service Tax-I Mumbai Appellant Vs. Ms Katrina R. Turcotte, Respondent
Appearance:
Shri . S.V. Nair, Supdt (AR) for Appellant Shri. N.R.Mainkar Adv , for Respondent
CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)
Date of Hearing : 06/08/2015 Date of Decision : 06/08/2015
ORDER NO
Per: M.V. Ravindran
This appeal is filed by the Revenue against Order-in-Original no.46-48/STC-I/BR/10-11 dated 15.03.2011.
2. Revenue is aggrieved by the order of the adjudicating authority on the ground that demand of Rupees 11, 81, 800/was dropped holding that service tax liability will not arise on an individual person prior to amendment made in sub class (zzb) of section 65 (105) of the Finance Act 1994, and Commissioner has wrongly interpreted the expression Commercial concern.
3. Heard both sides and perused the records.
4. On perusal of the records, we find the Revenue appeal has to be dismissed of as we find that against the very same order respondent was in appeal before this bench in appeal no. ST/387/11, which was disposed of by this bench by an order no A/670/12 dated 9.10.2012 holding in favor of the respondent here-in and setting aside the impugned order.
5. The findings in the bench of are in paragraph no 6 and 7, which with respect we reproduce.
6. In this case, the appellant has provided the service for promotion of product by agreeing as model herself for advertisement films, TV commercials, still photographing, footage, press advertisement, outdoor, packaging and sales material etc. The revenue is off the view that as the appellant is engaged in the activity of promoting/marketing or sales of the product manufactured by her client etc., therefore, the said activity falls under Business Auxiliary Service. The liability of service tax has not been disputed by the appellant. The appellants contention is that appellant has appointed M/s. Matrix as their agent to receive payment on behalf of the appellant from the clients and thereafter discharge the service tax liability on the above activity. These facts are also not in dispute. As per the agreements, the payments are to be made by the clients in the name of M/s. Matrix and M/s. Matrix has to discharge service tax liability, thereafter the balance amount was to be paid to the appellant. It this set of facts, service tax liability has been discharged by Matrix on the above said activity cannot be denied merely on the ground that it has paid under advertisement agency service. As M.s. Matrix has paid the service tax under the category of advertisement Agency service that does not mean that M/s. Matrix has not paid service tax on behalf of the appellant. By mere paying the service tax liability under wrong head does not mean that service tax liability has not been discharged. The allegation of the revenue that service has been rendered by appellant but has not discharged the service tax liability is not sustainable as per Section 65(7) of the Finance Act. Wherein the assessee means a person liable to pay service tax and includes his agent. In this case appellant has appointed M/s. Matrix as her agent to discharge her service tax liability on her behalf and same has been discharged by M/s. Matrix.
7. In these set of facts, we hold that the appellant has discharged the service tax liability through her agent on the activity in question undertaken by her, therefore the proceedings in this matter by way of show-cause notice and adjudication were not warranted.
6. It can be seen from the above reproduced portion of the order in respect of very same order-in-original, we have set aside the impugned order, holding that no tax liability arises on the assessee who is a respondent in this case. In view of the forgoing, we find no merits in the appeal filed by the Revenue.
7. Accordingly, the appeal filed by the revenue is dismissed.
(Dictated in Court) (C.J. Mathew) Member (Technical) akp
(M.V. Ravindran) Member (Judicial)
1 APPEAL No.ST/375/11-Mum
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