TMI Blog2023 (9) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... any activity relating to making or preparation of an advertisement, such as designing, visualizing, conceptualizing etc., only then will they be liable to pay service tax on the charges made thereon under advertisement agency service. A similar matter was also examined by the Tribunal in COMMISSIONER OF CENTRAL EXCISE, KOLKATA-V VERSUS THE INCODA [ 2004 (6) TMI 7 - CESTAT, KOLKATA ]. It was held hiring of space will not bring the appellant under the definition of advertising agency . Since the issue has been decided on merits in favour of the appellant the question of interest, penalties or invoking the extended period does not arise. Appeal allowed. - SHRI P. DINESHA, MEMBER (JUDICIAL) AND SHRI M. AJIT KUMAR, MEMBER (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by respondent-department. 4. We have heard Ms. Manne Veera Niveditha, learned counsel for the appellant and Shri Harendra Singh Pal, learned Assistant Commissioner (AR) for the Revenue. 4.1 The learned counsel for the appellant submitted that they are a Government of Tamil Nadu Undertaking providing transportation facility to the public. The terminology Advertisement Charges used by the appellant in their accounts is only for the sake of easy identification and convenience and it is not the deciding factor to determine that the appellant was covered under the service tax category Advertising agency . The charges collected from their clients was for using the space provided in the buses for fixing advertisement boards. She stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal, the appellant estimates the space for displaying the advertisement and for forming the layout, decide the nature, size of the presentation, apart from fixing the price. These activities would have to be considered as essential steps in the process of making / preparation of the advertisement. Hence, the appellant is concerned with the specified areas of making , preparation and displaying the advertisement. He prayed that the impugned order may be upheld. 5. We have heard the rival parties. It would be helpful to extract the relevant provisions of the Finance Act 1994, concerning the dispute: Section 65(3) states: advertising agency means any person engaged in providing any service connected with the making, preparat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olve themselves with conceptualizing, designing or preparing of the actual advertisements. This activity rests with the advertiser himself. The appellant only facilitates the display of advertising boards on payment of charges for the space allotted. This being so the question of the appellant being involved in the making, preparation, display or exhibition of advertisements does not arise. Mere selling of space for the exhibition of advertisements will not be covered by the definition of Advertising Agency . The onus of proof regarding fulfilment of condition subject to which an exemption may be admissible lies on the assessee or upon a party claiming benefit under a notification, but in the case of subjecting an activity to levy under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paration, display or exhibition of advertising and includes advertising consultant. Vide letter No. 341/43/96-TRU, dated 1st October, 1996, it was clarified that in relation to an advertising agency, the service tax is to be computed on the gross amount charged by the advertising agency from the client or services in relation to advertisements. This would, no doubt, include the gross amount charged by the agency from the client for making or preparing the advertisement material irrespective of the fact that the advertising agency directly undertakes making or preparation of advertisement or gets done through another person. However, the amount paid, excluding their own commission by the advertising agency for space and time in getting the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nceptualising, designing or preparing advertisement. This circular was not considered by both the lower authorities. Further, there is no finding given on the question of applicability of time limit in the impugned Order. We, therefore, set aside the impugned Order and remand the matter to the Jurisdictional Assistant/Deputy Commissioner with the direction to examine the chargeability of the activity in question to Service Tax in terms of Ministry s letter F. No. 345/4/97-TRU, dated 16-8-1999 and also to consider question of Time limit and unjust enrichment after affording a reasonable opportunity of hearing to the Appellants. (Emphasis added) 5.4 A similar matter was also examined by the Tribunal in Commissioner v. Incoda [2004 (174 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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