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2017 (1) TMI 436 - CESTAT MUMBAIWhether the payment received for allotment of time-slots to music companies by the assessee as fillers in programmes broadcast from outside the country is liable to service tax in the hands of the appellant as provider of ‘broadcasting agency service? - Scheme of private broadcasting in India - appellant has the option of inserting non-programme material of specified duration in the programme so produced for broadcasting and the time so available is sold to producers of music who resort to these fillers as means of providing a preview of proposed entertainment. Held that: - Only a scrutiny of the contract terms relating to those programmes for which fillers are sold to music companies, and was the subject matter in the proceedings before the adjudicating authority, will attest to the veracity of the claim. If such ascertainment of the nature of commercial engagement between the appellant and the overseas broadcasting agency reveals that of a client, and not that of an agent, and the ascertainment of the nature of the relationship between the appellant and the music companies who supply advertisement fillers in the programme produced by the appellant reveals that of a client, and not that of a fee remission agency, the claim of the appellant to be an independent service provider delinked from the foreign broadcasting service provider would sustain. In the absence of any such findings on the contract or similar evidence, it will be improper for us to come to that conclusion. There is a lack of precise conclusion on this submission in the impugned order. The matter needs to be remanded back to the original authority to take note of the distinction between the appellant as a representative of overseas broadcasting agency and the appellant as a commercial production-house selling slots in programs that are produced on its own account for broadcast through the overseas broadcasting agency and ascertain tax liability subject to the constraints of the show cause notice. Appeal allowed by way of remand.
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