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TMI Blog2020 (4) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... . The respondents are, or have been, 'surrogate' providers of 'broadcasting' service in India, taxable under section 65(105)(zk) of Finance Act, 1994 since 2001 (and, more especially, with retrospective effect of the amendment incorporated in 2002), in the hands of 'broadcasting agency' as defined in section 65(16) of Finance Act, 1994. The case of service tax authorities against these 'broadcasting agencies', representing 'broadcasters' outside the country, who, as per regulatory framework, are to act as surrogates and not for taxing purpose alone, is that, in addition to liability to be taxed on the consideration received for offering time slots, sponsorship of channel programmes and from the downstream carriers of broadcast/telecast signals which, admittedly, has been discharged , 'commission' for such handling contractually retained before remitting the dues, received as surrogate, to the overseas entity is also liable to tax as consideration for having rendered 'business auxiliary service', defined in section 65(19) of Finance Act, 1994, under section 65(105)(zzb) of Finance Act, 1994. 3. We have heard Shri V Sridharan, Learned Senior Counsel, and Shri SS Gupta, Learned Chart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me provision, are treated differently in the range, as well as channel, through which the service is rendered. Therefore, the logic of uncalled for preference in the absence of countervailing is flawed. 8. In a series of decisions commencing with that of the Hon'ble High Court of Bombay in Commissioner of Service Tax, Mumbai -II v. SGS India Ltd [2014 (34) STR 554 (Bom)] and followed in Commissioner of Service Tax, Mumbai-IV v. ATE Enterprises Pvt Ltd [2017-TIOL-1906-HC-MUM-ST], the factum of final delivery of the resulting activity to India was held to be insufficient to withhold from service rendered the benefit accruing to exporters. Therefore, taxability is excluded if it is established that the transaction is an export. 9. Considering the rival pleas, the Tribunal in Zee Telefilms Ltd v. Commissioner of Central Excise [2006 (3) STR 252 (Tri-Del)] held that '9. Finance Act, 2002 made amendments to the provisions relating to broadcasting with retrospective effect from 16th July, 2001. The amended provisions read as follows : Section 65(1)(14) 'broadcasting' has the meaning assigned to it in clause (c) of section 2 of the Prasar Bharati (Broadcasting Corporation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to accept the contention raised by the appellant and give a restricted meaning to the word "broadcasting" or "dissemination of any form of communication" even as they stood prior to amendment by Finance Bill, 2002. As pointed out by the learned DR meaning given to the word "disseminate" in all the dictionaries referred by the appellants would clearly show that unless the information or knowledge reaches the receiving end dissemination will not be complete. Meaning given to the word "dissemination" in Indian Edition 2001 the New Oxford Dictionary is 'spread or disperse (something especially information) widely'. Therefore, when the television programme and advertisements in the form of signals are encrypted and beamed from outside India and telecast outside India but are received in India through decoders by Multi System Operators and Cable TV operators, it would come within the meaning of definition of "broadcasting" under Section 2(c) of Prasar Bharati Corporation Act, 1990. Under the amended definition, the word "broadcasting" includes programme selection, scheduling or presentation of sound or visual matter on a radio or a television channel that is intented for public listeni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta v. Modern Cooperative Group Housing Society Ltd [2010 (262) ELT 6 (SC)], contends that '14. The Legislature in its wisdom has not enacted any deeming provision providing that in case the resolution is not considered and finally decided by the Registrar within a period of six months, the resolution shall become effective and operative. It is the exclusive prerogative of the Legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. Even if a legal fiction is created by the Legislature, the court has to ascertain for what purpose the fiction is created, and it must be limited to the purpose indicated by the context and cannot be given a larger effect. More so, what can be deemed to exist under a legal fiction are merely facts and no legal consequences which do not flow from the law as it stands. It is a settled legal proposition that in absence of any statutory provision, the provision cannot be construed as to provide for a fiction in such an eventuality. More so, creating a fiction by judicial interpretation may amount to legislation, a field exclusively within the doma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was not contemplated by the legislature or which would lead to an anomaly or absurdity.' in the decision of the Hon'ble Supreme Court in Imagic Creative Pvt Ltd v. Commissioner of re Commercial Taxes [2008 (9) STR 337 (SC)]. 12. It was further contended that the decision of the Tribunal in BBC World (I) Pvt Ltd v. Commissioner of Service Tax, New Delhi [2009 (14) STR 152 (Tri-Del)] and Vijay Television Private Ltd v. Commissioner of Service Tax, Chennai [2018-TIOL-2897-CESTAT MAD] have settled the dispute as far as the subsistence of the second service is concerned. 13. From the issues that are recorded in re Vijay Television Private Ltd are concerned, we observe that the appellant therein having raised the claim of being the provider of the service, the Tribunal, on the limited counter of Learned Authorized Representative, was content to hold that the activity constituted export and was not taxable. It is, therefore, a binding precedent for that resolution and, as the other submission was not considered, is sub silentio to that extent and we are, therefore, not bound by the facts found therein. The decision in re BBC World (I) Pvt Ltd is also lacking as a guide as the issue t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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