TMI Blog2006 (9) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... No. AAR/30/ 2005 dated the 13th December, 2005 in application No.AAR/44/58/ST/ 2005 filed on 28 th July, 2005 [reported in 2006 (72) RLT 91 (AAR)] It is stated in the application that there is prima facie factual error that has been considered for pronouncing of advance ruling inasmuch the Authority relied on the contention of the Commissioner that the applicant is providing various value added services, which tantamount to taxable services under the advertisement service category. This plea of the Commissioner was vehemently opposed by the applicant. The submission of the applicant was that it did not intend to provide the service of jumpstart etc. which ate mentioned on the website of Google Inc. USA and which are not intended to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No.12/2003-ST. dated 20th June, 2003. It is on this basis that the applicant seeks modification of our ruling clarifying as to whether in the light of the circulars and the subsequent developments, applicant is liable to pay service tax on the charges providing/selling space to a customer for mere exhibiting/displaying an advertisement in a case where no other value added services are provided to such a customer. 2. In his comments the Commissioner has submitted that as per regulation 18 of the Regulations there should be a mistake of law or facts on which the ruling is based and that in the present case there has been no mistake of law or facts in gibing the ruling, therefore, the application is not admissible. Adverting to para 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the applicant. In any event in the draft circular the views and comments ere invited; therefore, the contention based on this circular is of no consequence. 3. Mr. Atul Gupta, learned counsel appearing for the applicant, fairly submits that the applicant has no grievances with regard to the ruling pronounced by the Authority; what he prays is clarification of the ruling as is liable to be misinterpreted by the authorities. Mr. Roy appearing for the Commissioner has argued that to invoke the jurisdiction of the Authority under Regulation 18, the ruling must have been passed on a mistake of law or facts. Indeed, ruling is not based on any mistake of law or facts. The applicant in effect is seeking review of the ruling by praying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der appropriate but after allowing the applicant and the Commissioner a reasonable opportunity of being heard. It is thus apparent that the sine qua non for exercising the power is satisfaction of the Authority that an order/advance ruling has been pronounced under mistake of law or fact. It may not be out of place to mention here that the Central Excise Officer who passed the order has an analogous power under Section 74 of the Finance Act, 1994 (Service Tax Law) though the pre-requisite of that power is a little different, namely, mistake apparent from the record. Another analogous provision is Section 154 of the income-tax Act, 1961 where under the pre-requisite for rectification of mistake is a mistake apparent from the record . It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce enumerated in Chapter V of the Finance Act, 1994: Advertisement Services (as defined under Section 65 (105) (zh) [sic] of Chapter V of Finance Act, 1994). Computer Network Service (as defined under Section 65 (105) (zh) of Chapter V of Finance Act, 1994). Business Auxiliary Service (as defined under Section 65 (105) (zzb) of Chapter V of Finance Act, 1994). Any other taxable service (as enumerated in Section 65 (105) of Chapter V of Finance Act, 1994). It is thus obvious that the question set forth for ruling from the Authority relates to classification of services provided by the applicant. The relief sought in this application relates to quantum of amount chargeable to Service Tax. The petitioner's submission i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of these findings it would be difficult to accept the contention of the learned counsel of the applicant that the conclusion recorded by the Authority on the point as to whether applicant falls within the definition of Advertising Agency suffers from any mistake of fact or law, which is the sine qua non for exercising the power under Regulation 18 of the Regulations. The other ground on which the application is based is material change in the approach of the Central Board of Excise and Customs regarding what element of advertising services is liable to taxation under Service tax; it is noted above that this is beyond the scope of the application and, therefore, it is not relevant for the purpose of this application. We have indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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