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TMI Blog2009 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ; became taxable, they took service tax registration under this heading also and started paying service tax on the commission being received from BBC, U.K. for marketing service, distribution services and collection of revenue for BBC. At the same time, the Appellant, vide letter dated 27-8-03, requested the concerned officer for amending the registration certificate for Broadcasting service to read as 'on behalf of BBC, U.K.'. 1.1 A show cause notice dated 3-2-05 was issued to the Appellant for - (a) Recovery of allegedly wrongly availed/utilized service tax credit amounting to Rs. 34,11,859/- of the service tax paid under Business Auxiliary Service (BAS) head on the Commission received from BBC, towards payment of service tax under Broadcasting Agency Service head on the amount collected on behalf of BBC from its clients, along with interest on the allegedly wrongly utilized credit at the applicable rate; (b) Recovery of allegedly short paid service tax amounting to Rs. 1,09,628/- during April, 2003 period along with interest on it at the applicable rate; and (c) Imposition of penalty on the Appellant under Section 76 and 77 of the Finance Act, 1994 for short payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Service Tax Credit Rules, 2002. (4) The Appellant had given an application dated 27-8-03 for amendment of registration certificate as person liable to pay service tax on behalf of BBC, U.K." under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 read with Section 68 of the Act and if the registration is allowed to the Appellant as "person liable to pay service tax on behalf of BBC, U.K.", and not as broadcasting service provider, they would be eligible for credit of service tax paid on Business Auxiliary Service provided to BBC. The Department wrongly mentions the Appellant, in the registration certificate, as broadcasting service provider. It is the BBC, U.K. which is providing the broadcasting service, not the appellant, who only pay the service tax on behalf of BBC, U.K. The Appellant provide the business auxiliary service of marketing and bill collection to the BBC. (5) There is no short payment of service tax. The Appellant paying service tax on behalf of BBC, U.K. on the Broadcasting Service, had paid excess service tax of Rs. 1,09,628/- during March, 2002 to March, 2003 period and this excess payment was adjusted in April, 2003 under the provisions of Rule 6(3) of Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utside India - (a) as per Section 65(15) of the Act, the term -"broadcasting" also includes the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme or collecting the broadcasting charges or permitting the rights to receive any form of communication like sign, signal, writing, picture, image and sounds of all kinds by transmission of electromagnetic waves through space or cables, direct to home signals or by any other means to cable operators including multi system operators or any other person on behalf of the said agency or organization, by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner; (b) as per Section 65(16) of the Act, the "Broadcasting agency or organization" also includes its branch office, subsidiary or representative in India or any agent appointed in India or any person who acts on its behalf in any manner, engaged in the activity of selling time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting broadcasting charges, and (c) as per the provisions of Section 65(105)(zk), the "taxable ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the commission received by the Appellant must be allowed for utilization for payment of service tax on broadcasting service. We do not agree with this contention of the Appellant as even if they, by virtue of their agreement with BBC, U.K., are treated as an agent of BBC, by the legal fiction of Section 65(15) and 65(16) their activity - selling commercial advertising airtime on the BBC World Channels, collecting the broadcasting revenue from the customers and remitting the same to BBC, becomes "Broadcasting" and they become a "Broadcasting agency or organization" providing broadcasting service and in respect of their output service of "broadcasting" to their clients in India, their service of marketing and bill collection (Business Auxiliary Service) to his Principals - BBC, U.K. cannot be treated as input service. In other words when the same person i.e. the Appellant are providing the broadcasting service, as defined under Section 65(15) of the Act, to their clients in India and also the Business auxiliary service, as defined under Section 65(19) of the Act, to BBC, U.K., the latter cannot be treated as an input for the former. 3.2.1 It has been pleaded that the Appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay adjust the excess service tax so paid by him on pro rata basis, against his service tax liability for the subsequent period, if the assessee has refunded the value of the taxable service and the service tax thereon to the person from whom it was received. Thus the conditions to be satisfied for adjustment of excess payment of service tax during some period against service tax liability for subsequent period are that - (a) the excess payment must be relatable to some service or services not provided for which payment had been received by the service provider; and (b) the payment for the services not provided along with service tax paid on it has been refunded to the person from whom it was received. Rule 6(3) will not be attracted in cases where excess payment is due to reasons other than that mentioned above e.g. payment of service tax at higher rate or higher value etc. In this case, the Appellant have not explained as to how the excess payment during March 2002 - March 2003 period had taken place and if it was for the reason that service tax had been paid on the amount received for the services not provided, whether that amount together with tax had been returned to the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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