Wilson Horton Ltd v. Commissioner Of Inland Revenue

Per: P.R.Chandrasekharan

1. The appeal arises from Order-in-Original No. 67/BR-67/ST/Th-I/2011 dated 20-10-2011 passed by the Commissioner of Central Excise, Thane I Commissionerate. Vide the impugned order, the ld. Adjudicating authority has confirmed a service tax demand of Rs.7,48,56,620/- along with interest thereon and also imposing penalties under sections 76,77 and 78 of the Finance Act, 1994 on the appellant M/s Star India Pvt. Ltd., Mumbai (SIPL in short). Aggrieved of the same, the appellant is before us.

2. Facts relevant to the case are as follows. Acting on intelligence that M/s SIPL was indulging evasion of service tax on broadcasting services, the Directorate of Central Excise Intelligence (DGCIE in short) initiated investigation against the said firm. As part of the investigation, they examined an agreement dated 1-4-2009 entered into by the appellant with M/s Star Ltd., Hong Kong. Officials of the appellant firm as also one of the advertising agency were examined and their statements recorded. The agreement revealed that Star Hong Kong had appointed SIPL as their representative in India to solicit advertisements for the channels telecast by the former and also to collect and remit the advertisement charges. The invoices for the advertisements telecast would be raised by Star Hong Kong with instructions to the advertisers to make the payment to SIPL in Indian Rupees where such advertisers were Indian and directly to Star Hong Kong where such advertisers were not Indian. SIPL discharged service tax liability on such charges collected by it on behalf of Star Hong Kong under the taxable service category of broadcasting services. Thereafter SIPL remitted the charges to Star Hong Kong after retaining their commission. However, in the case of charges collected in US dollars which was remitted directly to Star Hong Kong by the advertisers, no service tax liability was discharged and SIPL received their commission from Star Hong Kong. It was further noticed that SIPL started discharging service tax liability on such charges from July, 2006 onwards. 2.1 The department was of the view that the activity of selling time slots for advertisements by SIPL on behalf of Star Hong Kong, irrespective of the manner of receipt of consideration either through SIPL or directly is covered under the category of Broadcasting services and is taxable with effect from 16-7-2001. M/s SIPL vide letter dated 24th August, 2007, submitted details of the amount collected by Star Hong Kong in US $ and also its equivalent in Indian Rupees and the amount so collected during the period from October, 2002 to June, 2006 amounted to Rs.99,21,25,139/-. Accordingly a show cause notice dated 23rd April, 2008 was issued to the appellant demanding service tax of Rs.7,48,56,620/- along with interest thereon and also proposing to impose penalties. The said notice was adjudicated vide the impugned order and the demands confirmed and penalties imposed. Hence the appeal before us.

3. The submissions made by the ld. Counsel for the appellant can be summarized as follows:- 3.1 The show cause notice and the impugned order has been issued/passed by authorities not having jurisdiction. 3.2 Service provided by the broadcasting agency to the client is the taxable service. As per the circular dated 9-7-2001 issued by the CBEC, the client is the advertiser. The retrospective amendment made in the Finance Act, 2002 is clarificatory/declaratory and re-affirms the above position. As per the circular dated 9-7-2001, the appellant is liable to pay service tax only when it collects advertisement charges which happens only when advertiser is Indian. In the case of advertisers situated abroad, the appellant does not collect any service charges and these are paid directly by the foreign advertiser to M/s Star Hong Kong. Under the Indian service tax law, generally service tax is leviable only when recipient of service is in India. 3.3 Service tax is a destination based consumption tax. Since in the case of foreign advertisers, since they are outside India, the services rendered to such service recipients are not taxable in India at all. Reliance is placed on the decision of the Tribunal in the case of SGS India Pvt. Ltd. [2011 (24) STR 360] wherein it was held that service tax is destination based consumption tax in the sense that it was on commercial activities and was not a charge on the business but on the consumer. If the services rendered are consumed abroad, then there will not be any liability to pay service tax. Since the advertiser is outside India, it should be construed that the service has been consumed outside India. Since the service has been rendered by Star Hong Kong and the recipient is also located outside India, there is no liability to pay service tax. 3.4 Reliance is placed on Rule 3 of the Place of Provision of Service Rules, 2012 wherein it is provided that the place of provision of a service shall be the location of the recipient of service. If this principle is applied, then it can be seen that the transactions involved are not taxable in India. 3.5 Reliance is also placed on the circular No. 341/43/95-TRU dated 31-10-1996 wherein it has been clarified that in respect of courier service that where the goods or articles which have been received from abroad and delivered to a customer in India, the courier agency is not liable to pay any service tax provided that the customer in India is not charged any amount for delivery of such goods or articles in India. The aforesaid clarification was re-iterated in the 36th Advisory Council held on 10-1-97. 3.6 Only with effect from 16-6-2005, subscription charges collected from viewers/subscribers through cable operator became taxable by virtue of specific amendments made in the law. This was expressly clarified in the circular dated 27-7-2005. The same was re-iterated in circular dated 9-6-2006 wherein it was stated that subscriber is not the client and service receiver prior to 16-6-2005 in respect of broadcasting service. 3.7 Entire demand being beyond the normal period is barred by limitation. Even prior to June 2001, foreign advertisers used to pay advertising charges directly to Star Hong Kong. Such amounts were not subjected to service tax. This fact proves that such practice of foreign advertiser directly paying to Star Hong Kong was already existing and the same was not adopted to avoid payment of service tax. The appellant has paid service tax to the tune of Rs.280 crore during the impugned period. The present tax demand is only 2.67% when compared to the tax paid which is a small percentage. Therefore, the appellant cannot be attributed with intention to evade payment of service tax. Therefore, the appellant was under the bonafide belief that they were not liable to pay service tax when Star Hong Kong collects advertisement charges directly from the foreign advertisers. 3.8 The ST 3 return as it stood at the material point required the appellant to show what it had collected. Therefore, in respect of collection made by Star Hong Kong, there was no need to declare the same in the said return. Hence no suppression can be alleged against the appellant. Reliance is placed on the Apex Courts decision in the case of VDM RM M RM Muthiah Chettiar [1969 74 ITR 183 (SC)] wherein it was held that an assessee was bound to disclose only those particulars mentioned in the return and by not showing such particulars, assessee cannot be deemed to have withheld material facts necessary for assessment. 3.9 In a proceeding pertaining to the period prior to 16-7-2001 regarding demand of service tax under advertising agency service, the agreement of the appellant with Star Hong Kong was produced before the department which clearly indicated that foreign advertisers were paying directly to Star Hong Kong. Therefore, the said fact was very much known to the department. On this ground also, the appellant could not be alleged to have suppressed any facts necessitating invocation of extended period of time. 3.10 Reliance is placed on the decision of this Tribunal in the case of Cox & Kings [2013-TIOL-1907-CESTAT-DEL] wherein it was held that services rendered abroad by a tour operator is not liable to tax in India in the case of outbound tourism. Reliance is also placed on the decision of the Court of Appeal in New Zealand in the case of Wilson & Horton Ltd. vs. Commissioner of Inland Revenue [(1996) 1 NZLR 26] wherein a question arose as to the applicability of GST in respect of advertisements placed in New Zealand by persons who were not resident in New Zealand and the court held that the said activity will not be leviable to GST. Reliance is also placed on the decision in Vodafore Essar Cellular case [2013 (31) STR 738] In the light of the above submissions, it is prayed that the appeal be allowed by setting aside the impugned order.

4. The ld. Special Consultant appearing for the Revenue made the following submissions:- 4.1 Broadcasting and Broadcasting agency or organization has been defined in sections 65 (15) and 65 (16) of the Finance Act, 1994 as follows:- (15) "broadcasting " has the meaning assigned to it in clause (c ) of section 2 of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (25 of 1990) and also includes programme selection, scheduling or presentation of sound or visual matter on a radio or a television channel that is intended for public listening or viewing, as the case may be; and in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme or collecting the broadcasting charges or permitting the rights to receive any form of communication like sign, signal, writing, picture, image and sounds of all kinds by transmission of electro-magnetic waves through space or through cables, direct to home signals or by any other means to cable operator including multisystem operator or any other person on behalf of the said agency] or organisation, by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner; (16) "broadcasting agency or organization" means any agency or organization engaged in providing service in relation to broadcasting in any manner and, in the case of a broadcasting agency or organization, having its head office situated in any place outside India, includes its branch office or subsidiary or representative in India or any agent appointed in India or any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or [collecting the broadcasting charges or permitting the rights to receive any form of communication like sign, signal, writing, picture, image and sounds of all kinds by transmission of electro-magnetic waves through space or through cables, direct to home signals or by any other means to cable operator including multisystem operator or any other person on behalf of the said agency] or organisation; 4.2 Similarly taxable service has been defined in section 65 (105) (zk) as follows:- (zk) to a client, by a broadcasting agency or organization in relation to broadcasting, in any manner and, in the case of broadcasting agency or organisation, having its head office situated in any place outside India, includes service provided by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programmes or collecting the broadcasting charges or permitting the rights to receive any form of communication like sign, signal, writing, picture, image and sounds of all kinds by transmission of electro- magnetic waves through space or through cables, direct to home signals or by any other means to cable operator, including multisystem operator or any other person on behalf of the said agency] or organisation. Explanation: For the removal of doubts, it is hereby declared that so long as the radio or television programme broadcast is received in India and intended for listening or viewing, as the case may be, by the public, such service shall be taxable service in relation to broadcasting, even if the encryption of the signals or beaming thereof through the satellite might have taken place outside India From the statutory definitions, it may be seen that in the case of broadcasting services, the taxable service in the case of broadcasting agency or organization having its head office situated in any place outside India include the services provided by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting the broadcasting charges on behalf of the said agency or organization. 4.3 In the present case, there is no dispute that SIPL is the independent representative of Star Hong Kong and is engaged in selling time slots for broadcasting or obtaining sponsorships or collecting broadcasting charges on behalf of the latter. It is also not in dispute that whenever advertisement charges are collected in Indian Rupees on behalf of Star Hong Kong, SIPL is discharging service tax liability. Therefore, it does not stand to reason that the service rendered to a person who directly makes payment to Star Hong Kong for broadcasting in India cannot be classified under broadcasting services. Since SIPL is essentially engaged in selling time slots for broadcasting on behalf of Star Hong Kong in both the situations, service tax would be leviable. 4.4 In the budget instructions issued on 16/7/2001, in respect of broadcasting services, it was clarified that the branches/subsidiaries/agents who act on behalf of foreign TV channels in selling time slots, recovering service charges and remitting the same to the foreign TV channels would be liable to pay service tax. Vide section 148 of the Finance Act, 2002, the statutory definitions of broadcasting, broadcasting agency and broadcasting services were retrospectively amended to make this position very clear. Again in the budget instructions of 2005-06 dated 27-5-2005, this position was re-iterated. 4.5 In terms of section 67 of the Finance Act, 1994, the taxable value of broadcasting is the gross amount charged by the service provider for the services provided or to be provided. Therefore SIPL ought to have included in the value of taxable service the amount received by Star Hong Kong from the advertisers. In the case of Zee Telefilms decided by this Tribunal [2004 (166) ELT 34 (T)], an identical question arose and the Tribunal held that the entire amount paid by the advertiser to Star has to be treated as the value of taxable service. 4.6 The contention of SIPL that when the advertisers are stationed abroad and broadcasting also takes place abroad, there is no liability to pay service tax is completely misplaced. The explanation to taxable service make it abundantly clear that even if the encryption or beaming of signals might take place outside India, so long as the broadcasting is intended to be viewed in India, liability to pay service tax in India arise. 4.7 As regards the contention that the demand is time barred, the argument put forth in this regard are untenable. The ld. Counsel has referred to column (4) of the ST3 return to argue that only value of taxable service realized alone has to be declared. He has however overlooked that in column(3) of the said return, the assessee has to declare the value of taxable service charged or billed. Therefore, the appellant was duty bound to declare the particulars in this regard which they have failed to do. It has also been argued that in the context of demand of service tax from the appellant under the category of advertising agency, the agreement entered into with Star Hong Kong had been considered and hence the department was in the knowledge of the existence of the agreement. This contention is also not tenable. The appellant has been working under self-assessment procedure since 2001 and it was his obligation to make proper declarations in the ST3 returns which he failed to do. Therefore, the extended period of time has been rightly invoked. Reliance is placed on the decision of the supreme court in the case of Madras Petrochem [1999 (108) ELT 611 (SC)] where in the context of case where the assessee failed to disclose the clearances in RT 12 returns and other relevant records, the invocation of extended period of time was upheld by the honble court. Therefore, the reliance placed in the Muthiah Chettiar case by the appellant is of no avail. In view of the foregoing submissions, it is pleaded that the impugned order be upheld both on merits as well as limitation by dismissing the appeal.

5. We have carefully considered the submissions made by both the sides. Our findings and conclusions are discussed in the ensuing paragraphs. 5.1 The appellant has raised the issue of jurisdiction. However, this point was not pressed by the Counsel during his oral submissions. In any case, this issue has been decided by this Tribunal in favour of Revenue in Standard Chartered Bank and Others [2013-TIOL-558-CESTAT-Mum] and accordingly, we hold that there is jurisdiction for the Revenue in this matter. 5.2 In the Finance Act, 2002, vide section 141, the definition of broadcasting and broadcasting agency or organization under sections 65 (15) and 65 (16) were retrospectively amended to include the following:- and in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme or collecting the broadcasting charges on behalf of the said agency or organisation, by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner 5.3 Similarly, the taxable service under section 65 (105) (zk) was amended to specifically provide for the following:- and, in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes service provided by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting broadcasting charges on behalf of the said agency or organization. Explanation For the removal of doubts, it is hereby declared that so long as the radio or television programme broadcast is received in India and intended for listening or viewing, as the case may be, by the public, such service shall be a taxable service in relation to broadcasting, even if the encryption of the signals or beaming thereof through the satellite might have taken place outside India; 5.4 The notes on clauses states that Clause 141 seeks to amend section 65 of the Finance Act,1994 so as to give retrospective effect from the 16th July, 2001 to such date as appointed by the Central Government under clause142, for the purpose of that section, to the specified provisions of section 65 of the said Act relating to levy and collection of service tax on the service rendered by a broadcasting agency or organisation. 5.5 From the statutory provisions as discussed above, it is abundantly clear that so long as the radio or television programme is received in India and intended for listening or viewing by the public in India, such activity shall be a taxable service even if the physical activity of broadcasting such as encryption of signals or beaming thereof takes place outside India and any branch office, subsidiary, representative, agent or any person who is appointed by the broadcaster for selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting broadcasting charges on behalf of the broadcaster will be liable to pay service tax. The notes on clauses, CBEC circulars dated 9-7-2001 and27-7-2005 also clarify this position. The definition of taxable service under section 65 (105) (zk) makes it crystal clear that if any activity is undertaken in any manner in respect of sale of time slots or obtaining of sponsorships or collection of broadcasting charges for the broadcaster situated abroad will be liable to service tax at the hands of its agent/representative in India. 5.6 From a perusal of the agreement between the appellant SIPL with Star Hong Kong dated 1-4-1999 the following picture emerges:

(i) SIPL has been appointed as non-exclusive independent Representative in the territory of India to solicit television advertising for the channels, namely, Channel V, Star World, Star Plus, Star News, Star Movies and such other channels as may be added in future and to collect and remit advertisement charges.

(ii) As per the agreement, invoicing for the advertisements telecast would be done by Star Hong Kong and where such payment is to be made by advertisers in Indian Rupees, Star Hong Kong will instruct the advertisers to make the payment to SIPL and where the payment is to be made in US $, the payment had to be made directly to Star Hong Kong. However, the delivery of the invoices to the advertisers on a timely basis was the responsibility of SIPL.

(iii) In the case of payments to be made in US $, the advertisers also had the option of paying it in Indian Rupees to SIPL who shall responsible for remittance of such amount in US $ to Star Hong Kong after getting necessary approval from RBI.

(iv) The duties of SIPL included soliciting advertisements at such terms as Star Hong Kong may declare from time to time and forwarding the advertisement orders to Star Hong Kong for acceptance.

(v) For the services rendered, the Representative was entitled to agency commission.

(vi) Any Indian taxes or any other levies in respect of the advertisement charges other than that on agency commission was to be borne by Star Hong Kong. 5.7 Thus from the terms and conditions of the agreement as detailed above, it can be easily seen that SIPL was engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting broadcasting charges on behalf of Star Hong Kong as its Representative. Thus SIPL fell squarely within the definition of Broadcasting Agency or organization as defined in section 65(16) and the activity undertaken by SIPL came within the definition of taxable service as defined in section 65 (105) (zk). The appellants contention that in respect of foreign advertisers who paid advertisement charges in US $ directly, they were not liable to pay service tax is bereft of any logic or sound reasoning. The definitions of broadcasting agency and broadcasting service do not make any distinction based on how the payment is made or to whom it is made. So long as the any activity in relation to selling of time slots or obtaining sponsorships or collecting and remitting charges is undertaken, the liability to pay tax is attracted. 5.8 The statement recorded under the provisions of section 14 of the Central Excise Act read with section 83 of the Finance Act, 1994 from Mr. Swpnil Sapre, Asst. Vice President (Taxation) of SIPL also makes this position very clear. In his statement dated 18-4-2008, he has inter alia admitted that no advertisements are booked by M/s Star Hong Kong directly, for channels to be telecast in India without the involvement of SIPL. In other words, all advertisements to be telecast in Star network channels are solicited by SIPL either from Indian advertisers or from Foreign Advertisers. He has further confirmed that for the advertisements solicited from foreign advertisers, SIPL has got its commission from Star Hong Kong. 5.9 We have also perused some of the advertisement release orders for the foreign advertisers and the invoices issued for the advertisement charges. For example, for the advertisement made for World Gold Council, Dubai, the advertising agency is M/s Ogilvy & Mather Ltd. Mumbai and they have released/placed the order vide release order dated 24/10/2001 for advertisement on the appellant SIPL for the month of November, 2001 in the Star Plus Channel in various programmes such as Kahani Ghar Ghar Ki, Hum Saat Anth Hai, Kyunki Ki Saans bhi kabhi bhahu thi and so on which are all programmes broadcast in India. The advertisement caption is Glow with gold and the time slot for advertisement is 22.30 or 19.30 hrs and the duration of advertisement is 15 seconds. The dates of advertisement/broadcast is also indicated in the release order. The rate of advertisement for 10 secs is mentioned in US $ and based on the number of spots, the total cost is indicated in US $. The invoice for the same has been issued by Star Hong Kong vide invoice No.992101 dated 15/11/2001 wherein sales office is indicated as India-Mumbai and the address for correspondence is that the appellant at Mumbai. The advertiser is shown as World Gold Council c/o Ogilvy & Mather, Mumbai and payment instruction has been given as Remit to Star, Hong Kong. It is also mentioned in the invoice that in accordance with Order U/S 197 of the Income Tax Act, 1961, tax has to be deducted at 5.76% of the gross invoice amount. Similarly in respect of advertisement for Singapore Tourism Board, the advertising agency is Contract Advertising India Ltd., Mumbai who vide release order dated 26-4-2002 placed the release order on the appellant at Mumbai for the month of May 2002 during the News Programme of Reality Bites indicating the dates and time and the rate is specified in US $ per 10 sec. and the total cost is worked out in US $. It is also directed in the said order to raise the invoice for the above campaign on Batey Ads. Pvt. Ltd., Singapore in US $ and send the same to the advertising agency at Mumbai for onward transmission to Singapore for settlement. In the corresponding invoices raised by Star, the sales office is shown as India Mumbai and the address for correspondence is that of the appellant at Mumbai. The advertiser is shown as Singapore Tourism Board c/o Contract Advertising, Mumbai and there are instructions to deduct tax under the Income Tax Act, 1961. From these documents, it is very clear that the sale of time slots for advertisement has taken place in India for broadcast of the programme for viewing/listening by the Indian public. Thus the fact the appellant has indulged in selling of time slots is proved beyond doubt and therefore, in terms of the statutory definitions of broadcasting agency and broadcasting services, the appellant is liable to discharge the service tax liability even in respect of foreign advertisers and we hold accordingly. 5.10 An argument has been adduced that since the appellant is not collecting the service charges, they are not liable to pay service tax. This argument is completely misplaced. The taxable service includes engagement in any manner in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting broadcasting charges on behalf of the broadcasting agency or organization situated outside India . The preposition used is OR which is disjunctive in nature and therefore, if any one of activities is undertaken, liability to service tax is attracted and we hold accordingly. 5.11 It has also been argued that since the payment is made in foreign currency, the tax is not leviable in India. The mode of payment of the consideration for the service rendered cannot be the criteria for determination of taxable event. The taxable event is rendering of taxable service as defined in 65 (105) (zk). Merely because the payment is made in foreign currency, the nature of the taxable event does not undergo any change. It is a settled position in law as held by the honble Apex Court in Bombay Tyre International [1984 (1) SCR 347] that the levy of a tax is defined by its nature, while the measure of the tax may be assessed by its own standard. It is true that the standard adopted as the measure of the levy may indicate the nature of the tax but it does not necessarily determine it. When enacting a measure to serve as a standard for assessing the levy the legislature need not contour it along lines which spell out the character of the levy itself. A broader based standard of reference may be adopted for the purpose of determining the measure of the levy. Any standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the levy. Therefore, merely because the measure of the levy is in a foreign currency, it cannot be said that the taxable event has not taken place. 5.12 An argument has been made that since payment is received in US $ in respect of services rendered to foreign advertisers, the same should be considered as export of service. This argument is not tenable. During the period involved in the present appeal, to qualify as export of service, two conditions were required to be satisfied in terms of notifications 6/99-ST dated 9-4-99 and 21/2003-ST dated 20-11-2003. The conditions were that the payment for the service rendered should be received in convertible foreign exchange and no part of such payment is repatriated outside India. In the present case, payment for the service rendered has been made to Star Hong Kong which implies, no payment is received in India and even if it is assumed that the payment has been received, the same has been repatriated outside India. The same position would accrue when the Export of Service Rules, 2005 were notified in March, 2005. Under the said rules also to constitute exports, the service should have been delivered from India for use outside India and payment for the services rendered should be received in convertible foreign exchange. In the present case the condition of receipt of convertible foreign exchange in India is not satisfied. Therefore, the transactions would not constitute exports as provided for in the law. 5.13 It has also been contended by the appellant that since the payment has been made by the foreign advertiser in US $ to Star Hong Kong, the said transaction is not taxable in India. Reliance has been placed on the decision of this Tribunal in the case of SGS India Pvt. Ltd., Vodafone Essar Cellular Ltd. case and a few other decisions. The said decisions were rendered in the context of technical testing and analysis service and telecom service, where the taxable service has been defined in a different manner. Reliance has also been placed on the decision of a New Zealand Court of appeal. The said decision has been rendered in the context of the law enacted in New Zealand. There is no evidence placed before us to show the legal provisions in New Zealand and India are identical or they are pre-mature. Hence, in our view no reliance can be placed on this decision. In the present case, the definition of broadcasting, broadcasting agency and broadcasting services includes in its purview any service rendered by a branch, subsidiary, agent or representative in India on behalf of the broadcaster who is situated outside India in relation to selling of time slots or obtaining of sponsorships or collecting and remitting service charges on behalf of the broadcaster. In view of the specific inclusion of the activity on behalf of the broadcaster located outside India, the said definition has to be given full effect to so as to achieve the object of the legislature. In British Airways PLC. [2002 (139) ELT 6 (SC)], the honble apex court held as follows:- 8. While interpreting a statute the court should try to sustain its validity and give such meaning to the provisions which advance the object sought to be achieved by the enactment. The court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make its working impossible. It is the cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. The well-known principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. The same view was re-iterated by the apex court in the Grasim Industries Ltd. [2002 (141) ELT 593 (SC)]. If we apply the ratio of these decisions to the facts of the present case, the Representative of the Foreign Broadcaster (who undertakes broadcasting in India) engaged in selling time slots or obtaining sponsorships or collecting and remitting charges, on behalf of the broadcaster has to be made liable to service tax in India , which is the express intention of the Legislature while making retrospective amendments to sections 65 (15), 65(16) and 65 (105) (zk) of the Finance Act, 1994. Therefore, this will of the legislature has to prevail and has to be given effect to. Viewed from this perspective, the argument that such a transaction is not taxable in India has to be rejected in toto and we do so. 5.14 We also note that the issue involved herein is also settled by the decision of this Tribunal in the Zee Telefilms Ltd. (supra) relied upon by the Revenue wherein it has been held as follows:-

9. Under the amended definition, the word broadcasting includes programme selection, scheduling or presentation of sound or visual matter on a radio or a television channel that is intented for public listening or viewing, as the case may. In the case of broadcasting agency or organisation, having its head office situated in any place outside India, the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme or collecting the broadcasting charges on behalf of the said agency or organisation, by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner are also brought under net of the term broadcasting. The activities as carried on by the appellants herein are not in dispute. Such activities would strictly come within the definition of the term broadcasting as amended. They will also come within the definition of the term broadcasting agency or organisation in view of the nature of activities carried on by them. It is not disputed that the appellants are engaged in the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme and are collecting broadcasting charges on behalf of ATL/EXPAND/STAR. Therefore, there is no merit in the contention of the appellants that they are not providing taxable service. 10.?In the light of the above view which we are inclined to take on the status of ATL/Expand/Star and the appellants with reference to the term broadcasting and broadcasting agency, we find no merit in the contention of the appellant that the value of their service has to be limited to the payment made to it by ATL/Expand/Star. The entire amount paid by the advertiser/sponsorer to ATL/Expand/Star has to be treated as value of Taxable Service. We do not find any reason to take a different view in the present case from that taken by the Tribunal earlier. 5.15 The next issue for consideration is the time bar aspect. The contention of the appellant since is that they were only required to declare the consideration received in the ST3 return and in the case of foreign advertisers the consideration was paid directly to Star Hong Kong, there can not be any mis-declaration on their part. This contention is obviously wrong. In the ST3 return, there was a column wherein the appellant was required to declare the amount charged to the service recipient, apart from the amount received. As per the agreement dated 1-4-1999, SIPL was appointed as non-exclusive independent Representative in the territory of India to solicit television advertising for the channels, namely, Channel V, Star World, Star Plus, Star News, Star Movies and such other channels as may be added in future and to collect and remit advertisement charges. The responsibility also included delivery of the invoices to the advertisers on a timely basis. Thus the appellant obviously knew the amount charged for the broadcasting services. Section 70 of the Finance Act, 1994, mandated that Every person liable to pay the service tax shall himself assess the tax due on the services provided by him and shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency as may be prescribed. Thus the appellant was operating under self-assessment procedure during the impugned period. The appellant has failed to declare in the said return the complete particulars with regard to the services rendered to the foreign advertisers. Therefore, the ratio of the decision of the honble apex court in the case of Madras Petrochem Ltd. (supra) relied upon by Revenue would squarely apply. In the said decision, the honble apex court had held as follows:- 14. The proposition of law as laid down is not in dispute. We find in the present case as aforesaid, a clear finding was recorded that the petitioner was aware and was obliged to file RG 1 Register, gate passes and also of clearances in the RT 12 returns by disclosing the particulars which was not done in the present case. The finding recorded in this case, especially in the background that this was a case of self removal procedure in which there is obligation cast on the assessee to make proper and correct declaration and entries in the production register RG 1. Further finding was that it was not by inadvertence. There could be no other inference if it was not by inadvertence, then deliberate, then it is not in the realm of inaction of the assessee but with the objective of a gain, which in other words would be conscious withholding of the information. Thus unhesitantly we conclude, on the facts of this case, proviso to Section 11 would be applicable, hence, show cause notice is held to be within time. Applying the above ratio to the facts of the case before us, the invocation of extended period of time to confirm the tax demand cannot be faulted at all and we hold accordingly. The honble High Court of Gujarat in Salasar Dyeing & Printing Mills (P) Ltd. Vs. C.C.E. & C., Surat-I [2013 (290) E.L.T. 322 (Guj.)] has held that - 15.?Upon reading the relevant provisions contained in Section 11A of the Act, it becomes clear that in case of duty which has not been levied or paid, or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion, wilful misstatement, suppression of facts, etc., period of service of notice on the person chargeable with such duty would be five years instead of one year provided in normal circumstances. Nowhere does this provision refer to the period of service of notice after fraud, collusion, wilful misstatement or suppression, etc. comes to the knowledge of the Department. In simple terms, the Department could recover unpaid duty up to a period of five years anterior to the date of service of notice when the case falls under proviso to sub-section (1) and such omission is on account of fraud, collusion, wilful misstatement, etc. Thus in our considered view, the invocation of extended period of time for confirmation of demand is fully justified and we hold accordingly. 5.16 There are a few decisions relied upon by the appellant in support of their various contentions. We have not individually dealt with these decisions for the reason that the same are not relevant to the facts of the case before us.

6. In the light of the factual and legal analysis as discussed above, we do not find any merit in the appeal and accordingly, the same is dismissed. (Operative part of the order pronounced in the Court on /09/2014) (Ramesh Nair) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj