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TMI Blog2025 (3) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid amounts so confirmed in terms of Section 75 of the Finance Act, has also imposed certain penalties equivalent to the amount so confirmed under Section 78 of the act ibid; he however has reduced the same to 25% of such penalty imposed in accordance with provisions of law, if it was paid within 30 days of the receipt of the order. The Learned Commissioner further confirmed an amount of Rs. 12,80,102/- under the category of "Brand Promotion Service" for the period April 2011 to March 2012 and an amount of Rs. 3,52,98,171/- for the period April 2011 to March 2012 under the category of "Business Auxiliary Service" besides seeking interest in terms of Section 75 on such amount as well as imposition of penalty under Section 76. A penalty of Rs. 10,000/- in terms of the provisions of Section 77 of the Finance Act was also invoked. The Revenue has also filed cross appeal in the matter for non-invocation of penalty under Section 78 on the appellant. 2. The facts of the case are that M/s Mahendra Singh Dhoni (Shaurya) (MSD) was registered with the department for provisioning of "Business Auxiliary Service". The appellant was issued two Show Cause Notices as referred to in Para 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quipment. (ii) MSD to unconditionally and irrevocably assign to ICL for the benefit of ICL, the entire copyright and all other rights of any kind in respect of any appearance or activity made or undertaken and any use of the said noticee's identification as contemplated in the agreement. 4. In the first SCN dated 20.10.11, since no bifurcation was available for the amounts received for promotional activities as well as for playing IPL services matches, the department considered the entire amount received by MSD under the said agreement as taxable value and accordingly it was alleged that MSD did not pay service tax amounting to Rs.2,11,84,714.00 on Rs. 19,29,27,151.00 being the amount received from ICL during April 2008 to March 2011, under Business Support Service. 5. The said SCN also stated that as per Audited Profit & Loss Account, MSD had received endorsement fees from business agents and from clients during May 2006 till March 2011 amounting to Rs.99,48,60,015/-, for the said period but had declared an amount of Rs.49,79,61,380.00 only in the ST-3 returns under Business Auxiliary Service and paid service tax thereupon. Thus it was alleged that MSD had suppressed the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated in the Trial Balance Statement and the Ledger for the concerned period but had declared an amount of Rs. 13,05,85,353.00 only in the ST-3 returns under Business Auxiliary Service and paid service tax thereupon. Thus it was alleged that MSD had suppressed the taxable amount of Rs.34,27,00,694.00 under the Business Auxiliary Service which resulted in evasion of Service Tax to the tune of Rs.3,52,98,171.00 under the head Business Auxiliary Service. 10. The appellant in respect of the first Show Cause Notice submitted that they had not rendered any service to India Cement Limited as alleged in the Show Cause Notice and contended that the agreement between ICL and M. S. Dhoni dated 11/06/2008 was for playing in IPL matches as a team member for the team owned by ICL. The Learned Advocate also drew our attention to the title of the agreement that reads as "India Premier League Playing Contract". He contends that as per the financial statements, it was evident that the amount received by the appellant was for playing cricket and therefore, cannot be considered as rendering of a taxable service and that no separate fee/remuneration was received by the appellant for rendering any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited reference to a communication from Dabur vide letter dated 02/01/2010. For payments from Aircel, the appellant submitted that it was clear from the bills raised by Midscapes Maestros that the payments was made to them and no payments were received directly by the appellant. As regards payment received from Parle Products Pvt. Ltd., it was the contention of the appellant that all bills were raised by Mindscapes Maestros as well as payments were made to them and no payment was made to the appellant. With regard to travel expenses, it was submitted that M/s. Parle Products Ltd. were directly involved in arranging the travel and no reimbursements were made to the appellant. For payments received from Reebok, the appellant had paid service tax due on the same. With regard to payment received from NDTV, reference was invited to NDTV's letter dated 11/11/2010 pointing out that no payments were made directly to the appellant and all such payments were made to M/s Mindscapes Maestro. Similarly with regard to Maxx, it was contended that the appellant had discharged Service Tax due thereon and similar was the position with respect to payments received from Purple People Entertainment Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the franchisee was at liberty to reduce the player fee by 5% on each occasion. In view of the aforesaid, it is the contention of the appellant that he only played for ICL as per the Player Agreement while the service provided by him to India Cements for promoting or marketing of the logo/brands/marks of the Franchisee/Sponsors and taking part in team endorsement events/other such activities would appropriately fall within the ambit of Support Services for Business or Commerce. When playing for the team, it is incumbent upon the player who is bound by the terms of the contract to abide by the terms and conditions as set out in the contractual agreement and participate in activities so indicated. 15. The Ld. Authorized Representative for the Revenue on the other hand supports the findings of the learned Commissioner and reiterates the same. 16. We note from records that though the appellant entered into an agreement with IPL for participation as a cricket player, indeed he was employed by ICL for the period of IPL tournament as a contract employee. No part of the appellant's remuneration, is indicated in the contract as being towards the above mentioned rights which his emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Support Service and the person receiving the service were independent entities having a principal to principal relationship between them. In the present case, it is not evidenced from records that the appellant had done anything to discharge Business Support Service as defined supra for ICL as the appellant was only engaged under the contract on a fixed remuneration for playing of cricket. 18. As for the "Brand Promotion Service" the same was not taxable up to 30th June 2011, therefore, it cannot be considered that the appellant rendered the said service during the period 2008-09 and 2009-10 and upto 30th June 2011. Playing for the team cannot be considered as providing Business Support Service. In connection with the tax liability for the period 1st July 2010 to 31st July 2011 Rs. 2,10,00,000/- were paid to the appellant as player fee/prize money. As the contract did not indicate any separate amount towards "Promotional Activities", there is no reason to understand the contract to mean as incorporating brand promotion activities as well. Mere requirement to participate in brand promotion of the Franchisee partners would not fall within the scope of Section 67 (1)(3) of the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Annexure XI of the paper book (page 284 onwards) (incidentally this is a communication of the department dated 30/10/2013), were not taken note of by the lower authority, though, these details were well available with the adjudicating authority at the time of adjudication. In Qui Facit Per Alium Facit Per Se, - a common legal principle to state that one who acts through another actually acts himself, there remains no doubt that tax as discharged by the various agents would need to be taken note of, for arriving at the total tax liability, if any on the appellant. As elaborately explained before us, that tax was duly discharged either by the appellant himself or on his behalf by the agent, we are of the view that the demand raised towards Brand Endorsement, as below:- Ist SCN- Rs. 4,93,05,83/- IInd SCN- Rs. 3,52,98,171/- does not survive and is required to be quashed. 20. Moreover, the appellant has also tendered during the course of the hearing, tabular statements as incorporated below that indicate that upon reconciliation of all payments done, no demand on the appellant could survive in the matter. These tables are as below : Table-I Description Amount (Rs.) Ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax @ 10% of the value of Playing Fees vide challans dt. 31.01.2012 & 13.2.2012 along with interest as applicable. We note that this amount does not find a mention as having been appropriated in the impugned order. Upon a query from the Bench, the ld. CA for the appellant undertakes not to claim refund of the said amount paid. In view of the fact that the total demand on this count of Rs. 14,96,402 (Ist SCN-1,16,300, IInd SCN- 12,80,102/-) stands paid along with interest, there is no merit in sustaining the same. Likewise, for the IInd SCN, we note that the appellant having admitted his liability to tax under BPS for the amount directly received by him and having paid the same vide challan dated 22.12.11 alongwith interest, the said demand would no more survive. It is also clarified from records that the demand of Rs. 12,80,102/- as worked out by the revenue was inclusive of Match Winning Bonus. This amount in our view has no bearing with rendering of service and needs to be excluded. Accordingly, tax @ 10% of Player Fee of Rs. 11.50 Cr, exclusive of Bonus is leviable to tax which as per challans as indicated above stands discharged. Thus no liability survives on this count as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under the circumstances, we are of the view that no case is made out in the matter to sustain the said allegations and we dismiss the same. 24. Before concluding we would also like to refer to the case of Katrina R. Turcotte vs. Commr. of Service Tax, Mumbai-I, 2013 (31) S.T.R. 670 (Tri.-Ahmd.) where the Tribunal had an occasion to deal with a similar instance of a celebrity artist being charged for service tax evasion, for rendering of BAS, wherein the tax was complied and paid through the aegis of agents (as included within the term "assessee" (Sec. 65 (7)). Material para of the said order is extracted below:- 6. In this case, the appellant has provided the service for promotion of product by agreeing as model herself for advertisement films, TV commercials, still photographing, footage, press advertisement, outdoor, packaging and sales material etc. The revenue is of the view that as the appellant is engaged in the activity of promoting/marketing or sales of the product manufactured by her client etc., therefore, the said activity falls under 'Business Auxiliary Service'. The liability of service tax has not been disputed by the appellant. The appellant's contention is that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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