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(14) Ld. Counsel submitted that brand endorsement/brand promotion was made taxable with effect from 1 July, 2010. Undisputedly, the petitioner was granted registration on 3 August, 2010 for such activities and from 1 July, 2010 the petitioner has undisputedly paid service tax for the services of brand endorsement/brand promotion. The CBEC by its circular/instruction dated 26 February, 2010 has clarified that promotion of brand or celebrity acting as a brand ambassador will be covered under the newly added service under Section 65 (105)(zzzzq) of the Finance Act, 1994. It was submitted that the petitioner by letter dated 24 November, 2009 clearly disclosed his activities and sources of receipts and denied that his activities are covered under business auxiliary services. Further, under cover of letter dated 14 December, 2009 the petitioner submitted copies of agreements and audited accounts for five years. On 28 January, 2011 a statement of the petitioner's representative was recorded by the Department. Further, by letter dated 20 August, 2011 the petitioner submitted the complete date wise details for all receipts for the period from 1 May, 2006 to 30 June, 2010 by specifying the entry of each receipts and this is not disputed by the Department. (15) Mr. Mittal submitted that the respondent no. 2, i.e. the Central Board of Excise and Customs issued the impugned instruction/letter dated 26 July, 2010 admitting that there were differences in views in respect of the service tax issue related to IPL. In paragraph 3 of the said letter it was stated that fee charged for playing matches will fall outside the purview of taxable service. However, it was stated that if the players are engaged in promotional activities as well as playing cricket and if there is no segregation, the service tax will be charged on the total composite amount. Relying on such instruction/letter which is illegal, the impugned demand has been raised on the petitioner. No levy exists on the activities of the petitioner during the relevant period of time and the entire proceeding against the petitioner including the demand is without jurisdiction. (16) Ld. Counsel submitted that the receipt of Rs. 4,85,66,782/- includes amounts received for writing articles in sports magazines as well as fee received for anchoring TV shows on Zee Bangla. These amounts obviously do not attract service tax and if these amounts are excluded, the receipt in respect of brand endorsement would be Rs. 2,62,61,782/- on which service tax effect is Rs. 29,99,066/-. Since 'Brand endorsement' was brought within the service tax net with effect from 1 July, 2010, the demand raised on the petitioner for brand endorsement for the period 1 May, 2006 till 30 June, 2010 under business auxiliary service under Section 65 (105)(zzb) of the Finance Act, 1994 is illegal and without jurisdiction. The respondent no. 3 in his order dated 12 November, 2012 has admitted that the aforesaid receipt is towards 'Brand Endorsement' fees. Since during the relevant period of time there was no levy of service tax on brand endorsement fees, the demand of the Department is illegal. Brand endorsement is obviously a different category from Business Auxiliary Service and had brand endorsement been covered under business auxiliary service, it would not have been necessary for Parliament to introduce a new category called 'brand endorsement' by way of amendment. Ld. Counsel submitted that it is a settled principle of law that when by making a substantive amendment to the statute, a new levy is imposed, it implies that there was no such levy in existence prior thereto. In this connection Ld. Counsel referred to a decision of the CESTAT, Principal Bench, New Delhi in the case of Commissioner of Service Tax, Delhi-vs.-Shriya Saran, 2014 (36) STR 641, where on similar facts the Tribunal held that the services provided by the assessee for brand promotion were covered by Section 65 (105)(zzzzq) of the Finance Act, 1994 which had come into force with effect from 1 July, 2010 and hence, during the period prior to 1 July, 2010 the assessee's activities in terms of her contracts could not be taxable under Section 65(105)(zzb) of the said Act.

According to the Department, commercial advertisement has taken different shapes and forms with the passage of time. Apart from the advertisement in print and visual media and sponsorship, one of the recent trends is to advertise a brand (i.e. goods, services, events, business houses bearing a particular brand name or house name) usually by a celebrity to associate him/her with the brand. The intended impression that is created in the mind of customers or users is that the products and services of that brand have the level of excellence comparable to that of the celebrity. The difference between business auxiliary service (effective from 1 July, 2003) and the newly introduced service of brand promotion (effective from 1 July, 2010) is that the latter has a wide coverage since mere promotion of brand would attract tax under this service head even if such promotion cannot be directly linked to promotion of a particular product or service. If the brand name/house mark is promoted by a celebrity without reference to any specific product or service, it is difficult to classify it under business auxiliary service. Such activities like establishing goodwill or adding value to a brand would fall under the newly introduced service head of Brand Promotion. These contentions of the Department would appear from the show cause notice dated 26 November, 2011 which is under challenge. (66) On this issue, Ld. Counsel for the petitioner submitted that 'Brand Endorsement' was brought within the service tax net with effect from 1 July, 2010. The demand raised for brand endorsement for the period 1 May, 2006 till 30 June, 2010 under the head of 'Business Auxiliary Service' is illegal and without jurisdiction. The respondent no. 3 in his letter dated 12 November, 2012 has admitted that the receipt of Rs. 2,62,61,782/- by the petitioner was towards 'Brand Endorsement Fees'. 'Brand Endorsement' and 'Business Auxiliary Service' are separate categories. If brand endorsement was covered under business auxiliary service, it would not have been necessary for Parliament to introduce a new category of 'Brand Endorsement' by way of amendment. If by making a substantive amendment to a taxing statute, a new levy is imposed, it implies that there was no such levy in existence prior thereto.