Custom, Excise & Service Tax Tribunal
Arun Advertising Agency vs Commissioner, Central Excise, Customs ... on 21 January, 2020
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
SERVICE TAX APPEAL NO. 57217 OF 2013
(Arising out of Order-in-Appeal No. IND/CEX/000/APP/392/2012 dated 17.12.2013
passed by Commissioner (Appeals)-I Customs & Central Excise-4, Indore (MP))
Arun Advertising Agency ....... Appellant
(G-1, Ratlam Kothi, Indore, M.P.)
VERSUS
Commissioner Central Excise, Customs and
Service Tax, Indore ....... Respondent
(P.B. No.10, Manik Bagh Road, Manik Bagh Palace, Indore, Madhya Pradesh 452001) APPEARANCE:
None for the Appellant Shri R.K. Majhi, Authorized Representative for the Respondent CORAM : HON'BLE MR.JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) DATE OF HEARING: 21 January, 2020 Final Order No._50124/2020__ JUSTICE DILIP GUPTA This Appeal is directed against the order dated 17 December, 2012 by which the Appeal filed by the Appellant to assail the order dated 30 March, 2012 passed by the Additional Commissioner was dismissed.
2. The hearing of the Appeal has been repeatedly adjourned on requests made by the learned Counsel for the Appellant. When 2 SERVICE TAX APPEAL NO. 57217 OF 2013 the matter came up before the Bench on 5 July, 2019, all these facts were noticed and the matter was directed to be listed on 5 August, 2019 with a clear stipulation that no further adjournment shall be granted and even if the learned Counsel for the Appellant does not appear, the matter may be decided.
3. On 5 August, 2019 the matter was directed to be listed on 14 October, 2019. On 14 October, 2019 no Counsel appeared for the Appellant and, therefore, the matter was directed to be listed on 2 December, 2019. On 2 December, 2019 again no Counsel appeared on behalf of the Appellant. The Bench, therefore, directed that a notice be sent to the Appellant and the learned Counsel appearing for the Appellant by registered post with acknowledgment due to inform them that the Appeal would be listed for hearing on 21 January, 2020.
4. The office has pointed out that a communication dated 1 January, 2020 was sent to the Appellant as also learned Counsel for the Appellant by registered post with acknowledgment due. The track consignment report mentions that the envelope was served upon the Appellant on 6 January, 2020 and upon the learned Counsel for the Appellant on 4 January, 2020.
5. Today when the matter has been called out, no Counsel has appeared to press the Appeal.
6. The impugned Appellate order has been perused and the learned Authorized Representative of the Department has been heard.
7. Learned Authorized Representative of the Department has submitted that the order passed by the Commissioner 3 SERVICE TAX APPEAL NO. 57217 OF 2013 (Appeals) does not suffer from any infirmity. His contention is that if evidence was not led by the Appellant regarding the rate difference, the Commissioner (Appeals) was justified in holding that there was no reduction of commission. Likewise, he has submitted that findings recorded by the Commissioner (Appeals) in regard to the agency billing and commission passed to the customers are justified in the facts and the circumstances of the case.
8. It transpires that the Appellant is providing services of advertising agency. It is acting as an agent of print media and collects the matter to be published in news paper. The print media pays commission to the Appellant at an agreed rate. It was alleged by the Department that during the course of audit of the accounts of the Appellant, a comparison of the balance sheet for the years 2004-05 to 2008-09 and the ST-3 returns for the corresponding period was carried out and it was noticed that the taxable value declared in the ST-3 form was short of the actual receipt.
9. A show cause notice was thereafter issued to the Appellant regarding the short payment of duty amounting to Rs. 6, 64,641/-. The Adjudicating Authority confirmed the demand and imposed penalty of an equal amount.
10. It is against this order of the Adjudicating Authority that an Appeal was filed before the Commissioner (Appeals), who by the impugned order has dismissed the Appeal. It transpires from the Appellate order that three issues were raised. The Appellant had submitted that while arriving at the taxable value, the Department did not consider the deductions from the gross receipt 4 SERVICE TAX APPEAL NO. 57217 OF 2013 of the billing and the three items noticed by the Appellate Authority are as follows:-
a. Rate difference passed to print media b. Agency billing c. Commission/discount passed to the customers.
11. In regard to the rate difference passed to the print media, the Commissioner (Appeals) found that though the Appellant had contended that the rate of communication varies and, therefore, this difference was liable to be deducted, but the Appellant had not produced any evidence which could show that during the disputed period print media had revised the rates. The Commissioner (Appeals) also found from a perusal of the reconciliation statement that the Appellant had claimed commission at the rate of 15 per cent only which meant that there was no change in the rate of commission.
12. In regard to the agency billing, the Commissioner (Appeals) found that even if the Appellant was providing services through another advertising agency the amount received as it's share of commission will be included in the taxable value.
13. In regard to the commission/ discount passed to the customers the Appellate Commissioner (Appeals) found that the Appellant was providing service to the print media as an agent and so the amount received from the print media would be taxable for the purpose of discharge of service tax.
14. Thus, finding no merit in the contentions raised by Appellant, the Commissioner (Appeals) dismissed the Appeal and upheld the order passed by the Adjudicating Authority. 5
SERVICE TAX APPEAL NO. 57217 OF 2013
15. The Appellant has not produced any evidence which can show that the print media had during the disputed period revised the rates, as a result of which there was a change in the rate of commission nor is there any serious challenge to the other findings.
16. Thus, the finding recorded by the Commissioner (Appeals) cannot be said to be suffering from any illegality. The Appeal is, accordingly, dismissed.
(Dictated and pronounced in the open court) (JUSTICE DILIP GUPTA) PRESIDENT (C.L.MAHAR) MEMBER (TECHNICAL) Rekha