TMI Blog2013 (5) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... ace or time for advertisement [as defined in explanation (1) to clause (zzzm)], would constitute the taxable service. The clarification issued by the Board which facially conveys an implication that mere sale of space or time would not constitute the service provided an advertising agency service fails to bring out the true import of the taxing provision. On the above analysis, as the grammatical meaning of the taxing provision is in conformity with its legal meaning, the activity of the petitioner as delineated in the adjudication order, would fall within the net of service tax as spelt out in Section 65(105)(zzzm). The contrary conclusion by the appellate authority, founded on to the decision of this Tribunal in Euro RSCG Advertisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receiving information that the respondent/assessee was recovering service tax from its clients; had suppressed value of the advertising services provided by it and had deposited only a portion of the amount as service tax, a search of the assessee s office premises was initiated by the Central Excise Commissionerate, Chandigarh, in February, 2006. A scrutiny of the ST-3 returns filed by the assessee, recording of a statement of the partner of the assessee on 23.8.2006; and analysis of the bills resumed during search operation and analysis of the balance sheet of the assessee followed. 3. A Show Cause Notice dated 16.10.2006 was issued setting out a demand of service tax of Rs. 7,11,804.78 and Rs.3692.90 as education cess thereon in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding any notice, circular, label, wrapper, document, hoarding or any other audio or visual representation made by means of light, sound, smoke or gas. Sub-Section (3) of Section 65 defines advertising agency as meaning any person engaged in providing any service connected with the making, preparation, display or exhibition of advertisement and includes an advertising consultant. Sub-section 105 of Section 65 read with clause (e) thereof defines a taxable service (in the context) as a service provided to any client, by an advertising agency in relation to advertisement, in any manner and clause (zzzm) of Section 65 (105) defines the relevant taxable service as service provided to any person, by any other person, in relation to sale of spa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal agency to the advertising media. 9. On an interactive analysis of the provisions of Section 65(2); 65(3); 65(105)(e) and 65(105)(zzzm) read with the explanation (1) thereunder, the conclusion is irresistible that the activity of the petitioner falls within the taxable service of advertising agency, defined in Section 65(105)(zzzm). 10. The adjudication authority has noted that the assessee failed to disclose in the ST-3 returns filed by it, the totality of receipts as per its balance sheet and this constituted suppression of material facts, legitimating invocation of the extended period of limitation, under Section 73 of the Act. 11. The ld. Counsel for the assessee in predicates the assessee s defence to Revenue s appeal on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority failed consider the relevant facts or the legality of the entire issue in so far as issue of cash discount and concluded that cash discount is an income from payment of bills in advance and not from the services rendered to clients, therefore the same does not attract service tax as advertising agency service. 14. Board circular dated 28.10.2003 purports to clarify the position regarding advertising agency service. Paragraph 4 of the circular states that activities such as canvassing involving receiving the text of advertisement, estimating the space that such advertisement would occupy in the newspaper/periodical/magazine, negotiating the price, forming the general layout of the advertisement that would finally appear in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he net of service tax as spelt out in Section 65(105)(zzzm). 16. The contrary conclusion by the appellate authority, founded on to the decision of this Tribunal in Euro RSCG Advertising Ltd. which is distinguishable on its distinct facts and the Board s circular dated 28.10.2003 (which we find does not really clarify the position), is therefore unsustainable. 17. Ld. Counsel for the respondent/assessee has contended that since no penalty as proposed in the Show Cause Notice was imposed in the adjudication order, invoking the provisions of Section 80, invocation of the extended period of limitation is also unsustainable. This contention does not commend acceptance by this Tribunal. The adjudication authority clearly recorded a finding th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
