TMI Blog2024 (3) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ty without examining the contracts individually for the rights/ obligations flowing therefrom may vary from contract to contract. This would be evident by the very fact that some of the contracts have been treated by the respondents in the writ appeals as representing temporary transfers thereby attracting the levy of Service Tax, while other contracts are understood by the respondents as resulting in perpetual transfers i.e., permanent and not temporary, thus outside the purview of levy of Service Tax. The matters may be remitted back to the assessing authority for fresh adjudication - Petition disposed off. - And W.M.P. Nos.10201, 17969, 17974, 18549, 19305, 19967,19965, 20031, 20035, 20040, 20078, 20079, 21778, 21783, 27677, 34264 of 2019 and 139, 12100 of 2020 Honourable Mr.Justice R.Mahadevan And Honourable Mr.Justice Mohammed Shaffiq For the Appellant : Mr.V.Sundareswaran For the Respondent : Mr.Joseph Prabakar COMMON JUDGMENT Challenging the common order passed by the learned Judge in a batch of writ petitions, the Revenue has preferred the present writ appeals, insofar as the learned Judge, while remanding the matters to the adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and exhibition of the cinematograph films either produced or purchased by them. The rights include satellite television broadcast, direct to home broadcast, direct satellite service etc. The assignments made by the respondents in the writ appeals, are either perpetual or temporary in nature, which would vary depending on the rights assigned under each contract / agreement. Admittedly, the respondents in the appeals, in respect of the temporary transfers, have discharged sales tax liability. Therefore, the learned Judge remanded the matters to the adjudicating authority for fresh consideration. While so, the learned Judge made certain observations on the merits of the show cause notice(s) / adjudication orders, which are apparently causing prejudice to the Revenue and thus, the same are challenged in the present batch of writ appeals. 8. Before proceeding further, it may be relevant to point out that before a Division Bench of this Court in AGS Entertainment Private Limited v. Union of India [2013 (32) STR 129 (Mad.)] a challenge was made to the vires of Section 65 (105) (zzzzt) of the Finance Act, 1994 and it was held that the levy of Service Tax on temporary transfer or pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 105 (zzzzt) to any person, by any other person, for- (a) transferring temporarily; or (b) permitting the use or enjoyment of, any copyright defined in the Copyright Act, 1957 (14 of 1957), except the rights covered under sub-clause (a) of clause (1) of section 13 of the said Act; 8.2. The above provisions were rendered inapplicable with effect from 01.07.2012 whereby the following proviso was inserted to Finance Act, 1994 : 65. Definitions In this Chapter, unless the context otherwise requires,- (1) actuary has the meaning assigned to it in clause (1) of section 2 of the Insurance Act, 1938; ..... (121) ---- (Inserted by Finance Act, 2012 (23 of 2012), dt. 28-05-2012, w.e.f. 1-6-2012.) [PROVIDED that the provisions of this section shall not apply with effect from such date as the Central Government may, by notification, appoint.] 8.3. We have referred to the above provisions only to indicate that pursuant to the Finance Act of 2012, Section 65 of the Act, i.e., the definition clause as it stood existed prior to 01.07.2012 was rendered inapplicable w.e.f. the said date viz., 01.07.2012. The Finance Act of 2012 brought o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this section shall not apply with effect from such date as the Central Government may, by notification, appoint.] 66B Charge of service tax on and after Finance Act, 2012 There shall be levied a tax (hereinafter referred to as the service tax) at the rate of (Substituted for twelve percent by Finance Ac, 2015 (20 of 2015), dt. 14-5-2015, w.e.f. 1-6-2015 vide Noti.No.14/2015-ST, dt.19-5-2015) [fourteen per cent] on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed. 66D. Negative list of services The negative list shall comprise of the following services, namely:- (a) services by Government or a local authority excluding the following services to the extent they are not covered elsewhere- (i) services by the Department of Posts by way of speed post, express parcel post, life insurance and agency services provided to a person other than Government; (ii) services in relation to an aircraft or a vessel, inside or outside the precincts of a port or an airport: (iii) tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s flowing therefrom may vary from contract to contract. This would be evident by the very fact that some of the contracts have been treated by the respondents in the writ appeals as representing temporary transfers thereby attracting the levy of Service Tax, while other contracts are understood by the respondents as resulting in perpetual transfers i.e., permanent and not temporary, thus outside the purview of levy of Service Tax. We are of the view that the observations so made by the learned Judge represent a truncated rather incomplete adjudication, warrant interference. 10. After submissions for a brief while, it was agreed upon by both the parties that the matters may be remitted back to the assessing authority for fresh adjudication as was in-fact done by the learned Judge, though after making observations on merits, with a request that all the issues may be left open. 11. In view of the above, in the case of challenge to show cause notice(s), the Respondents in the writ appeals / writ petitioners are permitted to file their objections and in the case of challenge to orders of adjudication, the same are set aside and liberty is granted to the Respondents / writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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