TMI Blog2018 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants - appeal allowed by way of remand. - ST/441 & 442/2007-DB - Final Order No. 20851 - 20852 / 2018 - Dated:- 28-6-2018 - Hon'ble Mr. S. S. Garg, Judicial Member And Hon'ble Mr. P. Anjani Kumar, Technical Member Mr. N. Anand, Advocate For the Appellant Mr. N. Jagadish, AR For the Respondent ORDER Per : P. Anjani Kumar M/s. Yespi Arts and M/s. Yespi Advertisers are engaged in the business of hiring hoardings and painting on the walls of houses, huts, etc., fabrication of hoardings and fixing of flex or vinyl stickers and also engaged in writing banners, name boards, etc. The Department has issued two show-cause notices separately to M/s. Yespi Arts and M/s. Yespi Advertisers. 2. In respect of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n advertisement and they come into picture only after such processes are completed and this aspect is crucial to determine the liability of the appellant for payment of service tax. The appellant further submitted that they would not fall under the definition of advertisement agency category as defined in Section 65(3) read with Section 65(105)(e) of the Finance Act, 1994; activity of hiring of hoardings and rental charges received thereof is not liable to payment of service tax under the category of advertisement agency as defined in Section 65(3). The activity of hiring of hoardings became taxable only with effect from 1.5.2006 under the category of sale of space or time for advertisement . The appellants further submitted that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advertising consultant and taxable service in relation to advertising service under Section 65(105)(e) means any service provided to a client by an advertising agency in relation to advertisement, in any manner. The learned DR further contended that no other agency is involved and the customers are their clients. He draws attention of the Bench to the judgment of Hon ble High Court of Kerala in the case of CCE vs. Zodiac Advertisers: 2009 (13) STR 593 (Ker.) and stated that all the case laws cited by the appellants are prior to this judgment of Hon ble Kerala High Court and therefore, need not be considered. In this particular case, Kerala High Court has clearly held that the definition of advertising agency has a wider connotation. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal which would examine whether the appellant herein is undertaking the work of conceptualizing, visualizing and creating the advertisement or whether it is only complying with the instructions of its clients. This aspect needs further details. Therefore, we are setting aside the order of the Tribunal as well as the order of the High Court. 6. In the instant case, it is essential to see whether the activities undertaken by the appellants such as conceptualization, visualization and creating an advertisement or they are simply complying with the directions of their clients. The same can only be done by evaluation with the evidence available in the form of purchase bills, sales invoices and purchase order, which would clearly giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are small entities doing the work for their clients and also keeping in view the fact that they have remitted service tax wherever the clients were insisting on, there appears to be reasons to believe that they have a bona fide belief that they were not liable to pay service tax. They have placed reliance on the following case laws: Municipal Corporation of Delhi vs. Jagan Nath Ashok Kumar: AIR 1987 SC 2316 Addl., CIT vs. Mohammed and Sons: 1985 (154) ITR 220 (Raj.) CWT vs. S. L. Khunnah: 1989 (180) ITR 340 (All.) R.B. Bahutule vs. Commissioner: 2004 (166) ELT 233 (Tri.) Mohan Industrial Security Services vs. Commissioner : 2002 (139) ELT 722 (T) ETA Engineering Ltd. vs. Commissioner: 2004 (174) ELT 19 (Tri.- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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