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2014 (9) TMI 181 - AT - Service TaxCable operator service - dispute about figures of subscriber base - huge difference between the figures of subscriber base as furnished by the appellant to the department and information received from the broadcasters - the statements of payments received from ICC by the broadcasters also corroborated - Held that:- for the determination of the short payment of service tax, Revenue has adopted the number of subscribers given in the agreements entered into by the appellant with the broad casters and the same has been compared with the figures adopted by the appellant for discharge of payment of service tax as declared in the statutory ST3 returns. Once the figures are taken from a written contract, which is in pursuance to a statute, namely, Telecom Regulatory Authority of India Act, 1997 and the regulations made thereunder, the same is beyond challenge. For the period subsequent to 10/09/2004, Section 73 which was substituted vide Finance Act, 2004, provided for rejection of declared value and determination of tax liability on the basis of the evidence available. Therefore, the confirmation of service tax demand on the basis of these legal provisions cannot be challenged/questioned. Once the liability to pay service tax is decided, the question of interest liability is automatic and consequential in terms of provisions of section 75 of the Finance Act, 1994. While the penalty under section 76 is for default/delay in the payment of service tax and no mens rea is required to be proved, penalty under section 78 involves mens rea on the part of the appellant. Prior to 10-5-2008 penalties under both the sections could be imposed simultaneously - However penalties cannot be imposed simultaneously under both the above sections with effect from 10-5-2008 as the law was amended to that effect. - demand of service tax and penalties confirmed - Decided against the assessee.
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