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2018 (8) TMI 697

. Vs. CCE, Delhi-III [2009 (8) TMI 14 - SUPREME COURT], where it was held that assessee is entitled to credit on the eligible inputs utilized in the generation of electricity to the extent to which they are using the produced electricity within their factory (for captive consumption) - credit allowed. - Advertising agency services - The case of appellant is that since the appellant is not a advertising agency and has not rendered the advertisement agency service which otherwise has been rendered by M/s. Prime Site and M/s. Grphis Ads, neither he is the sub contractor of both the said companies as such appellant is not liable to pay the service tax on that account - Held that:- The appellant contracted with both the advertising agency to .....

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decided against appellant. - Service Tax Appeal No. ST/55444/2014-Ex [DB] - ST/A/52706/2018-CU[DB] - 2-8-2018 - MR. C.L. MAHAR, MEMBER (TECHNICAL) And MS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Anil Kumar Khanna (Advocate) Present for the Respondent: Mr. G.R. Singh, (DR). ORDER PER: RACHNA GUPTA The briefly stated facts relevant for the present appeal are as follows that the appellants are registered with the Service Tax Commissionerate for rendering advertising agency service falling under Section 65(105)(e) of the Finance Act, 1994 (the Act for shorts). During an audit of the appellant it was noticed by the Department that the appellant has wrongly availed the cenvat credit in respect of inputs and input services .....

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d. Advocate for the appellant and Shri G.R. Singh ld. DR for the Department. 3. It is submitted on behalf of the appellant that vide the Show Cause Notices various allegations were leveled against the appellant one of them was of wrongly availing cenvat credit on the construction material used for the construction a per a agreement in their favour by the government authorities. The said demand has already been dropped vide the order under challenge and that Department has not filed an appeal thereof. The order to that extent has attained finality. The findings are prayed to be upheld. With respect to the demand of service tax, it has been submitted that the authorities below have wrongly held the appellant to be a sub contractor while faste .....

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reements in their favour and utilizing the same secondly about the demand of service tax for uduing advertising agency services along with proportionate interest and penalty. As far as the first issue is concerned the Commissioner (Appeals) has already dropped the demand and the department has not challenged the same therefore we hold that the first issue stand decided in favour of the appellant otherwise also we opine that that while dropping that demand the authority below has rightly relied upon the authority of Hon ble Apex Court in the case of Maruti Suzuki Ltd. Vs. CCE, Delhi-Iii, 2009(240) ELT 641 (SC) hence we do not find any infirmity qua those findings the findings allowing the cenvat credit to the appellant are hereby confirmed. .....

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any service tax on the invoices raised on the advertising agencies in the year 2006-07 as no service tax was payable in that year as the services of advertising were provided by both the said agencies to their clients. But we observe that the impugned taxable service, w.e.f. 16.06.2005, has the meaning as any service provided or to be provided to a client by an advertising agency in relation to advertisement, in any manner and w.e.f 16.05.2008 the word client was replaced by any person. The expression advertising agency is defined under Section 65(3) of the Act to mean any person engaged in providing any service connected with the making preparation display or exhibition of advertising and that of the advertisement consultant. These definit .....

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still leviable on any taxable service provider. 10. Though the appellant has taken the plea that those payments are made in lieu of renting the property to both the advertising agency companies to display the advertisements of their clients but the perusal of the invoice of appellant falsifies the said submission as those amounts are mentioned to have been received for displaying the advertisements. Thus irrespectively the advertisement were prepared by M/s. Prime Site and M/s. Graphis Ads for their clients but those are displayed by the appellant for which he has taken an amount, the appellant is equally a service provider to that extent as already held above and the amount received is the gross amount for calculating the service tax liab .....

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f making no payment of the tax liability by the appellant till the issuance of show cause notice to him is opined to be a sufficient positive act on part of the appellant which may amount to suppression with the whole intention of evading tax. 12. The Hon ble Apex Court in the case of Anand Nishikawa Co. Ltd. Vs CCE Meerut 2005 (188) ELT 149 (SC) has held that whenever a correct information is not disclosed the only object thereof is the evasion of duty. There is nothing on record which may support the appellants of being under the bonafide belief of not being liable to pay tax. The certificates from both the advertising agency among the documents on the records including a certificate from DDB Mudra/a client, rather shows that the services .....

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