TMI Blog2009 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... S/Shri S.S. Kang, Vice-President and Rakesh Kumar, Member (T) Shri Ravi Raghavan, Advocate, for the Appellant. Ms. A.P. Tiwari, Jt. CDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - The Appellant are a subsidiary in India of M/s. BBC Worldwide Ltd., U.K. (hereinafter referred to as BBC) and their functions are securing advertisement for airtime sales on BBC World Channel, and collecting airtime revenue for BBC, for which they get commission from BBC. The Appellant on being asked by the Revenue, applied for service tax registration under 'Broadcasting Agency Service' as agent of BBC, vide letter dated 28-8-01 and were issued the registration certification on 3-9-2001. The Appellant were discharging service tax liability under Broadcasting service. When w.e.f. 1-7-03, 'Business Auxiliary Service' became taxable, they took service tax registration under this heading also and started paying service tax on the commission being received from BBC, U.K. for marketing service, distribution services and collection of revenue for BBC. At the same time, the Appellant, vide letter dated 27-8-03, requested the concerned officer for amending the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , credit of service tax period on BAS would be available to the Appellant for utilization for payment of tax on the Broadcasting Agency service. (2) The dispute raised by the Department that the debit notes were not in the name of the Appellant but in the name of the BBC, U.K. is only due to reason that the Department failed to notice that the Appellant were registered under broadcasting service on behalf of BBC, U.K. and it is the BBC, U.K. which was rendering the broad casting service. Since the Appellant were only acting on behalf of BBC, U.K., the Cenvat credit taken on the basis of debit notes/invoices which were in the name of BBC, U.K. are in accordance with law. (3) Since the Appellant were registered under broadcasting agency service only as an Agent of the BBC, U.K., the credit taken on debit notes raised in the name of BBC, U.K. was in accordance with Rule 5 of the Service Tax Credit Rules, 2002. (4) The Appellant had given an application dated 27-8-03 for amendment of registration certificate as person liable to pay service tax on behalf of BBC, U.K. under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 read with Section 68 of the Act and if the registration i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Appellant during April 2002 - March 2003 period is not for the reasons specified in Rule 6(3). (4) Penalty under Sections 76 and 77 has been correctly imposed on the Appellant. 3. We have carefully considered the submissions from both the sides. The Appellant admittedly are a wholly owned subsidiary of BBC, U.K. and as per their agreement with BBC, they are required to liaise with the advertisers (customers) in India for selling commercial advertising airtime on the BBC world channel, collect the advertisement revenue from the customers (advertisers) and remit it to BBC, U.K., after deduction/deposit of the withholding tax/service tax and for these services, they get a commission from BBC. Services provided by a Broadcasting agency or organization became taxable w.e.f. 16-7-01. Since in case of a broadcasting agency or organization having its head office situated in any place outside India - (a) as per Section 65(15) of the Act, the term - broadcasting also includes the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme or collecting the broadcasting charges or permitting the rights to receive any form of communica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained service tax registration under BAS also and started paying service tax on the commission being received by him from BBC, U.K. 3.2 The first point of dispute is as to whether the Appellant, during 2003-04 period, were entitled, in terms of the provisions of Service Tax Credit Rules, 2002, to take credit of service tax of Rs. 34,11,859/- paid under BAS head on the commission received from BBC, U.K., for its utilization for payment of service tax on broadcasting services. The Department has denied this credit on the ground that the invoices/debit notes on the basis of which this credit has been taken by the Appellant are in the name of BBC while the Appellant's contention is that since the service tax liability on broadcasting service is being discharged by them on behalf of BBC, U.K. and since it is the BBC, U.K. who is the broadcasting service provider, the credit of service tax paid under BAS head on the commission received by the Appellant must be allowed for utilization for payment of service tax on broadcasting service. We do not agree with this contention of the Appellant as even if they, by virtue of their agreement with BBC, U.K., are treated as an agent of BBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for marketing and bill collection received by the Appellant from BBC. 4. Second point of dispute in this appeal is as to whether there was short payment of tax amounting to Rs. 1,09,628/- during April 2003. According to the Appellant, there is no short payment as they in accordance with the provisions of Rule 6(3) of the Service Tax Rules, 1994, had adjusted the excess service tax amounting to Rs. 1,09,628/- paid during March 2002 - March 2003 period, in April 2003. The Commissioner has rejected the Appellant's plea on the ground that the conditions prescribed in Rule 6(3) for adjustment of excess tax paid against service tax liability for subsequent period have not been satisfied. 4.1 Sub-rule (3) of Rule 6 of the Service Tax Rules, 1994 provides that where an assessee has paid service tax in respect of a taxable service, which is not so provided by him either wholly or partially for any reason, the assessee may adjust the excess service tax so paid by him on pro rata basis, against his service tax liability for the subsequent period, if the assessee has refunded the value of the taxable service and the service tax thereon to the person from whom it was received. ..... 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