Custom, Excise & Service Tax Tribunal
Mumbai I vs Zee Entertainment Enterprises Ltd on 13 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: ST/518/2011
[Arising out of Order-in Original No: 03/STC-I/SKS/11-12 dated 30/06/2011 passed by the Commissioner of Service Tax I., Mumbai.]
For approval and signature:
Honble Shri M V Ravindran, Member (Judicial)
Honble Shri C J Mathew, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
No
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Commissioner of Service Tax
Mumbai I
Appellant
versus
Zee Entertainment Enterprises Ltd
Respondent
Appearance:
Shri B. Kumar Iyer, Superintendent (AR) for the appellant Shri Vinod Awtani, Chartered Accountant for the respondent CORAM:
Honble Shri M V Ravindran, Member (Judicial) Honble Shri C J Mathew, Member (Technical) Date of hearing: 13/04/2016 Date of decision: 13/04/2016 ORDER NO: ____________________________ Per: C J Mathew:
This dispute that is placed before us is the outcome of order-in-original no. 03/STC-I/SKS/11-12 dated 30th June 2011 of Commissioner of Service Tax-I, Mumbai dropping the notice for revision, under the erstwhile section 84 of Finance Act, 1994, of the order of the adjudicating authority in the demand issued to M/s Zee Entertainment Enterprises Ltd.
2. M/s Zee Entertainment Enterprises Ltd had, against payment, downloaded images, journals, photographs etc. from the website of M/s Agency France Press (AFP) which, according to tax authorities, was availment of online information and data base access and/or retrieval service with liability to pay tax of ` 1,76,706/-. The adjudicating lower officer held that it was taxable as intellectual property service from which copyright is excluded for the purpose of taxation. Reiterating this contention, the revision authority, too, held in favour of M/s Zee Entertainment Enterprises Ltd.
3. Revenue contends that copyright is not the issue in this subscription agreement but the right to use the downloaded images, and that it is the downloaded images that are commercially exploited and not the copyright per se. It is their contention that the subscription agreement enforces restrictions.
4. Learned Chartered Account drew attention to the decision of the Tribunal in Commissioner of Central Excise, Madurai v. M Palanimuthu [2011 (24) STR 354 (Tri-Chennai)] which held that review of orders of Commissioner by the competent Committee of Chief Commissioners, under section 86 of Finance Act, 1994, did not extend to revision orders with effect from 19th August 2009 when section 86(2) of Finance Act, 1994 was amended. As held in re M Palanimuthu 4.?The legal objection raised by the learned counsel is valid. In view of the amendment to the law with effect from 19-8-2009 an Order-of-Revision passed under Section 84 of the Finance Act, 1994 is out of the purview of the review by the Committee of Chief Commissioners. Hence the impugned Order-of-Review and the appeal filed pursuant to the said order are not valid in the eyes of law. Accordingly, the Departments appeal is rejected without going into the merits of the same.
5. It is the claim of Revenue that the order which was sought to be revised had been passed on 6th July 2009 and taken up in revision proceedings within the time-limit prescribed in the erstwhile section 84 of Finance Act, 1994. Hence, even though section 86 did not, any longer, encompass revisionary orders, it was competent for the Committee of Chief Commissioners to review the impugned order and direct an appeal under section 86 of Finance Act, 1994.
6. We have perused the decision of the Tribunal in TA Pai Management Institute v. Commissioner of Central Excise, Mangalore [2013 (29) STR 577 (Tri-Bang)] holding that:
15.1?It is not in dispute in the present cases that a lis between the department and any assessee commenced with the issue of Section 84 show cause notice. In each of these cases, a show cause notice was issued under the erstwhile Section 84 of the Finance Act, 1994 to the assessee by the jurisdictional Commissioner of Central Excise. The proposal in that notice was to revise the decision taken in favour of the assessee by the original authority, and the same was contested. After hearing the assessee, the Commissioner passed an order-in-revision against the assessee after 19-8-2009. Applying the Honble Supreme Courts ruling (supra), we hold that the institution of revisionary proceedings by the Commissioner through issuance of show cause notice under Section 84 of the Act carried with it the implication that the right of appeal then in force was preserved to the assessee till the rest of the career of the said proceedings and, accordingly, the right of appeal which was in force under Section 86 (unamended) of the Finance Act on the date of institution of the revisionary proceedings remained with the assessee through the entire course of the proceedings. If that be so, each of the appellants had the right of appeal against the revisionary order of the Commissioner concerned on the date on which that order was passed.
15.2?Further, as per the ruling of the Apex Court the right of appeal is governed by the law which prevailed on the date of institution of the revisionary proceedings (date of issue of revisionary show cause notice) and not by the law which prevailed on the date of decision by the revisionary authority or on the date of filing of the appeal against such decision. It would follow that the right of appeal in these cases has to be ascertained with reference to the provisions of Section 86 of the Finance Act as it stood on the date of issue of the revisionary show cause notice. It is not in dispute that, in each of these cases, the appellate remedy was available to the assessee under Section 86 of the Finance Act on the date of issue of the revisionary show cause notice. Therefore the revisionary orders passed by the Commissioners under the erstwhile Section 84 of the Finance Act, 1994 could be appealed against under the erstwhile Section 86 of the Act. In other words, these appeals are maintainable as per the Apex Courts ruling.
7. We find that the notice proposing revision was issued on 27th April 2011, well after the amendment that substituted the erstwhile section 84. Consequently, the circumstances that prevailed in re TA Pai Management Institute are not present in the instant dispute. The revision powers were sought to be invoked under a non-existent provision and hence the review undertaken by the Committee of Chief Commissioners is without jurisdiction.
8. Consequently, we reject the appeal.
(Pronounced in Court) (M V Ravindran) Member (Judicial) (C J Mathew) Member (Technical) */as 6 2