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2020 (4) TMI 106 - AT - Service TaxBusiness Auxiliary Services - Broadcasting Service or intermediary service - Import of services - Place of provision of services - respondents are ‘surrogate’ providers of ‘broadcasting’ service in India - For Revenue, it was argued that retained amount constitute consideration for acting as an intermediary for securing the earnings that are generated from telecast of signals - HELD THAT:- The retained amount is not an outflow and, in the absence of outflow of consideration from the respondents herein to the overseas entity, recourse to these Rules cannot be had. Most critically, the domestic ‘broadcast agency’ and overseas ‘broadcast agency’, though taxed by the same provision, are treated differently in the range, as well as channel, through which the service is rendered. Therefore, the logic of uncalled for preference in the absence of countervailing is flawed. In a series of decisions commencing with that of the Hon’ble High Court of Bombay in Commissioner of Service Tax, Mumbai –II v. SGS India Ltd [2014 (5) TMI 105 - BOMBAY HIGH COURT] the factum of final delivery of the resulting activity to India was held to be insufficient to withhold from service rendered the benefit accruing to exporters. Therefore, taxability is excluded if it is established that the transaction is an export. The deeming fiction carries with it the burden of tax on the entire consideration receivable by the overseas entity and in the hands of the Indian entity acting as agency of such overseas entity. Respondent is deemed provider of service and the range of activities included in the taxable service comprises the very aspects that were sought to be taxed in the proceedings initiated by the show cause notices. Perceptibly, the same activity cannot be taxed twice as the classification of services itself provides, by section 66F of Finance Act, 1994, for situation in which more than one competing entry cannot be allowed to sustain - Appeal dismissed - decided against Revenue.
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