ST - When allegation in SCN is of undervaluation and demand of differential tax liability and question of re-classification was never charged, both lower authorities have misdirected their findings to classify services under Advertising agency: CESTAT

MUMBAI : THE issue is regarding the service tax liability on the appellant in providing the activity of painting, pasting, displaying and/or maintaining the same on side-panel of buses on behalf of the client namely M/s. LIC and M/s. New India Insurance Co. Ltd.

The appellant had charged an amount as "display charges" from their clients but did not discharge the service tax liability under the category of "Advertising Agency" service.

The demands were confirmed along with imposition of penalties besides demanding interest.

Before the Tribunal, the appellant submitted that the services rendered by them would not fall under the category of "Advertising agency" but under "Sale of Space or Time for Advertisement" and is taxable from 01.05.2006 whereas the demand in the case in hand is from April 2003 to March 2008. Reliance is placed on the decision in Dhanshree Publicity - 2007-TIOL-1983-CESTAT-DEL to emphasise that the painting activity undertaken by a sole proprietor will not amount to advertising agency services. Furthermore, it is informed that appellant on his own from 01.05.2006 has discharged the service tax liability under the category of "Sale of Space or Time for Advertisement".

The AR submitted that the appellant had got registered under the category of "advertising agency" services and discharged their tax liability but now were claiming reclassification of the services and that the SCN only sought to recover differential tax on the charge of under-valuation.

The Bench observed -


"8. We find that the appellant has mis-directed himself in defending the allegations made in the show-cause notice and has put up a defence that the service rendered by them are not classifiable under advertisement agency service post 01.05.2006 and classifiable under the category of "Sale of Space or Time for Advertisement". On perusal of the show-cause notice we find in Para 7 and 8, the allegations in the show cause notice is that appellant has not discharged the differential service tax liability on an amount received from M/s LIC and M/s New India Insurance Co. Ltd. towards painting charges and display charges. Appellant had never disputed the fact that they have received the amount towards painting charges and display charges from their clients. On perusal of the agreement/work order issued to the appellant we find that M/s. LIC has categorically stated that service tax liability arises on both the amounts. When the allegation in the show cause notice is for undervaluation and question of re-classification was never charged, we find that both the lower authorities have misdirected their findings and tried to classify the services under advertisement agency services. We find that these service are not at all disputed by appellant nor there is any allegation in the show cause notice to that extent."

Upholding the order confirming the demand of differential service tax liability along with interest and the penalties imposed, the appeals were rejected as being devoid of merits.

(See 2015-TIOL-1874-CESTAT-MUM)