ZEE TELEFILMS LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The applications for waiver of pre -deposit of Rs. 14,75,89,5007 - and penalty of equal amount + Rs. 500/ -, Rs. 1,000/ - and Rs. 2007 - for every day of delay until the date of payment of service tax (Zee Telefilms Limited) and Service Tax of Rs. 7,66,13,907/ - and penalty of equal amount in addition to penalties of Rs. 500/ -, Rs. 1,000/ - and Rs. 200/ - for every day of delay until the date of payment of service tax (in the case of Star India Pvt. Ltd.) arise out of the order of the Commissioner of Central Excise (Appeals), holding that the applicants herein are covered by the definition of Advertising Agencies and hence are liable to service tax.

(2.) We have heard both sides. We find that the same applicants had come up before the Tribunal earlier against the order of the Commissioner (Appeals) dismissing their appeals for non -compliance with statutory requirement under Section 35F read with Section 83 of the Finance Act, 1994 and by Final Order Nos. 18 -19/04 -NB(A) dated 21 -6 -2004. Zee Telefilms Ltd. v. Commissioner , the Delhi Bench of the Tribunal held that the applicants had made out a prima facie strong case in their favour for waiver of pre -deposit in the light of the decision of the Hon'ble Madras High Court in the case of Advertising Club v. Central Board of Excise and Customs and Circular dated 23 -3 -2004 and waived pre -deposit and remanded both the matters to the Commissioner (Appeals) for fresh decision on merits. In the present impugned order, the Commissioner (Appeals) has relied upon the decision of Madras High Court in the case of M/s. Adwise Advertising (P) Ltd. v. Union of India . However, prima fade, the decision in the case of M/s. Adwise Advertising is distinguishable for the reason that there was no disputes that the Petitioner before the High Court was Advertising Agency and decision was whether the commission earned by the agency from the advertising media, if it forms a part of the gross amount charged by such agency from its client in relation to the advertisement was includible in the value of taxable service. In other words, there was no dispute regarding the fact that the petitioner before the High Court was Advertising Agency

(3.) In the light of earlier order of the Tribunal in the applicants own case and in the light of the decision of the Madras High Court cited supra, a strong prima facie case for total waiver on merits has been made out by the applicants and accordingly, we waive pre -deposit of service tax and penalties and stay recovery thereof pending the appeals.