SUMMARY OF CASE LAW
The making and sale of advertising materials for customers in the form of banner or hoarding or film-slide, etc. is `advertisement’ as defined under section 65(2); all commercial concerns engaged in any of the activities connected with advertisement, which includes making, preparing, displaying or exhibition of advertisement, answer the description of `advertising agency’.
4. The question to be considered is whether this activity of the respondent answers the description of “advertisement” , and further whether respondent answers the description of “advertising agency” under the above definition clause. Advertisement is given an inclusive definition and it is, any notice, circular, label, wrapper, document, hoarding or any other audio or visual representation made by light, sound, smoke or gas. Admittedly, respondent is engaged in printing and making of advertising materials with the name, product name, logo or trade name, etc. of the customer with or without design work, and the advertising board or banner or sticker or box so made is supplied to the customer for display. Besides this, respondent is making advertising material; like PVC balloons, display stands, cinema slides etc. Since these items squarely come within the meaning of label, wrapper, document, hoarding or any other audio or visual representation as stated under S. 65(2) of the Act, the adjudicating officer took the view that the product made by respondent for customer is advertisement as defined under S. 65(2) of the Act and consequently respondent is liable to pay service tax as an ‘advertising agency’.
5. The Tribunal has assumed that advertisement in all the cases is a creative work involving conceptualization, visualization, designing etc. According to the Tribunal, since respondent was not engaged in all these activities, their work does not involve making of advertising material and therefore respondent does not answer the description of advertising, agency. Even though advertisement in many cases may involve what the Tribunal has stated, it is wrong to think that anything else is not advertisement. It is for the customer to decide what type of advertisement meets his requirement, it is very common that products are advertised just with the name or with the logo or with the design and in some cases, advertisements are given only in name of the manufacturer or in the name of the product or both. We do not rind any basis for the Tribunal’s assumption that advertising material is always a product of conceptualization, visualization or designing by the Advertising Agency concerned which makes it. Several persons may be involved in the making of an advertising material and each and everyone may have role in it. The Tribunal has assumed that the advertisement in all cases involve entire comprehensive activities of making of the material and display of the same. In fact, repetitive use of same advertising material is also advertisement. We have already noticed that advertisement by showcasing or publication or display of product name, logo, manufacturer’ s name etc. is very common. We find the definition is an inclusive one, wide enough to cover anything independently referred to therein. Therefore, we are of the view that the making and sate of advertising materials for customers in the form of banner or hoarding or film-slide, etc. is ‘advertisement’ as defined under S. 65(2) of the Act.
6. The next question to be considered is whether the respondent answers the description of an “advertising agency” as defined under S. 65(3) of the Act. We notice that the Tribunal held in favor of respondent by holding that “to be called as an ‘advertising agency’, all the activities mentioned in the definition should be carried out by the person.” We completely disagree with this view of the Tribunal because what is required in the definition clause to qualify an ‘advertising agency’ is, that, the commercial concern should be engaged in providing any service connected with making, preparation, display or exhibition of advertisement and includes an advertising consultant. The Tribunal, while interpreting the provisions, virtually re-enacted the legislation by substituting “any service” with “all services”, which in bur view will defeat the very purpose of legislation. When the legislature says any commercial concern engaged in providing any service connected with advertisement is an ‘advertising agency’, the Tribunal has no authority to hold that carrying on of all of the activities pertaining to advertisement only will attract the definition clause. It is common knowledge that an advertisement as conceived by the Tribunal in their order is the product of the efforts of several persons or agencies. When the legislature, which is presumed to be familiar with the nature of business on which legislation is made, makes any activity connected with it liable, the Tribunal cannot defeat it by holding that ail activities resulting in advertisement only will attract liability. We are of the view mat all commercial concerns engaged in any of the activities connected with advertisement, which includes making, preparation, displaying or exhibition of advertisement, answer the description of ‘advertising agency’. In other words, all activities referred to in definition clauses need not be carried out by the commercial concern to answer the description of ‘advertising agency’. Since respondent is admittedly engaged in production and sale of advertisements with the materials referred above, based on customer’s orders, the Assessing Officer rightly held respondent to be liable to pay service tax as an ‘advertising agency. Even though learned senior counsel appearing for the respondent relied on the circular dated 16-8-1999, F. No. 345/4/97-TRU, issued by the Ministry granting exemption to the persons engaged in printing and publishing of telephone directories, yellow pages or business directories, we do not think such decision can apply to the respondent because respondent is admittedly engaged in production and sale of advertising materials only and is not engaged in printing work only.