TMI Blog2010 (11) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus the demand may be covered within the normal period of limitation but having held in favour of the assessee on merits, the impugned order confirming demand and imposing penalties is required to be set-aside - Allow the appeal of the assessee. - ST/3 OF 2007 - A/1850/WZB/AHD/2010 - Dated:- 9-11-2010 - ARCHANA WADHWA, B.S.V. MURTHY, JJ. ORDER Archana Wadhwa, Judicial Member - The order impugned before us stands passed by the Commissioner of Service Tax, Ahmedabad confirming demand of duty of Rs. 2,22,58,779 along with confirmation of interest and imposition of penalty of Rs. 4.45 Crores under section 78 of the Finance Act, 1994 and imposition of penalty at the rate of Rs. 200 per day in terms of section 76 and Rs. 7,000 [at the rate of Rs. 1,000 per return] under section 77 of the Finance Act, 1994. 2. Appellant is engaged in the purchase and sale of time slots from electronic media channels to various advertising agencies on commission basis. The registration obtained by them from service tax department was subsequently surrendered. Their premises were visited by the officers on 22-12-2004, who conducted various checks and verifications. Statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms Advertisement and Advertising Agency need to be understood. The definitions of the above said terms defined under Act are as under : Advertisement - Advertisement includes any notice, circular, label, wrapper, document, hoarding or any other audio or visual representation made by means of light, sound, smoke or gas. [Section 65(2) of the Act] Advertising Agency - Advertising Agency means any person engaged in providing any service connected with the making, preparation, display or exhibition of advertisement and includes an advertising consultant. [Section 65(3) of the Act] By considering the above definition, the Commissioner has observed that the definition of advertisement is an inclusive definition and inclusions like notice, circular, label, wrapper, document, hoarding or any other audio or visual representation made by means of light, sound, smoke or gas are given just to make the definition more expressive. Similarly, she has concluded that Advertising Agency means, any commercial concern engaged in providing any service connected with the making, preparation, display or exhibition of advertisement. Inasmuch as the appellant is admittedly purchasing time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating authority has upheld the invocation of longer period in the show-cause notice. 9. After carefully considering the submissions made by both the sides, we find that admittedly the appellant was only purchasing and selling the time slots. It was in no way connected with making, preparation, display or exhibition of advertisements. The Tribunal in the case of Prithvi Associates v. CCE [2005] 2 STT 149 (Mum. - CESTAT), while upholding the said appellant s liability to service tax where the readymade advertisements received from the Government departments were being displayed by it on the back side of specified buses, has observed in Para 11 as under : 11. . . The appellants have also contended that in some of the cases, they were only hiring the space and providing the same to the Government agencies, who were themselves displaying the boards, etc. on such space. We agree with the learned advocate that in such a case, the activity of hiring the space and providing the same to a person, who uses it for advertisements will not meet the definition of advertisement, thus attracting no tax on the same. Tribunal, in the above case, has held that the appellant is not liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... events. As such, we find that a subsequent entry having been enacted covering the activity without any change of the existing entry, has to be interpreted as if the earlier existing entry did not cover the subsequently created entry. If the subsequent entry was covered by the earlier entry, there was no reason or scope to create the present entry especially when the rate of tax in respect of both the entries remains unchanged. Certainly, creation of new entries was not by way of bifurcation of the earlier entry inasmuch as the earlier entry relating to advertisement remains unchanged without any change in the tax rate. As such, the introduction of new tariff entry do imply that the coverage in the new tariff for the purposes of tax was an area not covered by the earlier entry. It was so held in case of Glaxo Smithkline Pharmaceutical Ltd. reported in 2006 (3) STR 711 (T) = 2005 (188) ELT 171 (Trib. - Mumbai) = (2005-TIOL-688-CESTAT-MUM) as also in case of ZEE Telefilms Ltd. Star India (P) Ltd. v. CCE, Mumbai reported in 2006 (4) STR 349 (Tribunal) 2006-TIOL-945-CESTAT-MUM. If it is held that the activity of sponsorship and sale of space were covered under the earlier heading of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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