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2022 (9) TMI 626 - AT - Service TaxMaintainability of Reference to Third to member - Difference of opinion - Classification of services - internet telecommunication service or not - services provided by MTNL to customers through National Internet Exchange of India [NIXI] - extended period of limitation - HELD THAT:- The findings recorded by the learned Member (Technical) are based primarily on the fact that MTNL had raised an invoice on the INXI on 09.10.2020 after initiation of the investigation by Directorate General of Central Excise Intelligence. Thus MTNL had, in a way, admitted service tax liability on the services provided to ISPs through NIXI in the form of peering arrangement. The learned Member (Technical) further held that it was not material whether any payment was received by MTNL against the invoice dated 09.10.2013 because service tax is payable from the date of invoice, in view of the provisions as they existed w.e.f. 01.04.2011, when the Point of Taxation Rules, 2011 came into effect. The questions framed by the Division Bench clearly relate to the aforesaid issues addressed by the learned Member (Technical) and the learned Member (Judicial) in their separate orders. According to the order, it has to be determined as to whether the learned Member (Judicial) was correct in holding that MTNL was not liable to pay service tax on the invoice raised by NIXI as NIXI was not a service provider and hence not liable to pay service tax or whether the learned Member (Technical) was correct in holding that MTNL is liable to pay service tax since it raised an invoice for the services provided. The decisions, on which reliance has been placed by learned authorized representative, would not come to the aid of the Department as it has been found as a fact in the present case that the learned Members have set out the point on which they differ and it is not that the entire matter has been referred to the Third Member. The appeal may now be listed on October 07, 2022 to enable the parties to make submissions.
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