Pioneer Publicity Corporation Pvt. Ltd vs Commissioner Of Service Tax

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appeal No. ST/300/11

(Arising out of Order-in-Appeal No. RBT/29/2011 dated 31.01.2011 passed by Commissioner of Central Excise Customs (Appeals), 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?

Pioneer Publicity Corporation Pvt. Ltd.

Appellant Vs.

Commissioner of Service Tax, Mumbai Respondent

Appearance:

Shri Neerav Mainkar, Advocate for appellant Shri S.R. Nair, Supdt. (AR) for respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing: 30.07.2015 Date of Decision: 30.07.2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No. RBT/29/2011 dated 31.01.2011.

2. Heard both sides and perused the records.

3. The issue involved in this case is regarding the service tax liability on the appellant in providing the activity of painting, pasting, displaying and/or maintaining the same on side panel of buses on behalf of the client namely M/s. LIC and M/s. New India Insurance Co. Ltd. It is undisputed that appellant had charged an amount as display charges from their clients but did not discharge the service tax liability under the category of Advertising Agency service. Both the lower authorities have confirmed the demand raised and also imposed penalties besides demanding interest.

5. Learned Counsel would draw our attention to various findings recorded by the lower authorities and submit that the services rendered by them would fall under the category of Sale of Space or Time for Advertisement and is taxable from 01.05.2006 whereas the demand in the case in hand is from April 2003 to March 2008. He would then take us through the definition of Advertising Agency services and submit that they have not rendered any of the services as mandated in the said definition. He also submits that the Tribunal in the case of Dhanshree Publicity - 2008 (10) STR 209 (Tri.  Del.) has held that the painting activity undertaken by a sole proprietor will not amount to advertising agency services. It is his submission that appellant on his own from 01.05.2006 has discharged the service tax liability under the category of Sale of Space or Time for Advertisement, accordingly he submits that the services rendered by appellant is not taxable.

6. Learned D.R. on the other hand would draw our attention to the fact that appellant himself had got registered under the category of services advertising agency services and discharged the service tax liability and now they are claiming reclassification of the service rendered by them while show-cause notice issued to appellant is only seeking to recover the differential tax from the appellant on the charge of under-valuation. He would draw our attention to the allegations made in the show-cause notice.

7. We have considered the submissions made at length by both sides and perused the records.

8. We find that the appellant has mis-directed himself in defending the allegations made in the show-cause notice and has put up a defence that the service rendered by them are not classifiable under advertisement agency service post 01.05.2006 and classifiable under the category of Sale of Space or Time for Advertisement. On perusal of the show-cause notice we find in Para 7 and 8, the allegations in the show cause notice is that appellant has not discharged the differential service tax liability on an amount received from M/s LIC and M/s New India Insurance Co. Ltd. towards painting charges and display charges. Appellant had never disputed the fact that they have received the amount towards painting charges and display charges from their clients. On perusal of the agreement/work order issued to the appellant we find that M/s. LIC has categorically stated that service tax liability arises on both the amounts. When the allegation in the show cause notice is for undervaluation and question of re-classification was never charged, we find that both the lower authorities have misdirected their findings and tried to classify the services under advertisement agency services. We find that these service are not at all disputed by appellant nor there is any allegation in the show cause notice to that extent.

9. In view of the foregoing we find that appellants appeal is to be rejected as there is no dispute as they have collected an amount from LIC and New India Insurance Company Ltd. and did not discharge service tax liability by not showing the said amount in their service tax returns.

10. We uphold the impugned order of confirming the demand of differential service tax liability along with interest and the penalties imposed and reject the appeal as devoid of merits.

(Dictated in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

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1 5 Appeal No. ST/300/11