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TMI Blog2014 (9) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... lant ICC is a cable operator receiving signals from broadcasters such as Star (I) Pvt. Ltd., M/s ESPN-Star Sports, M/s. Sony Entertainment Television Pvt. Ltd., M/s Zee Turner Pvt. Ltd. and so on. The appellant was discharging service tax on a subscriber base of 17000 approx. However, details of payments made to the broadcasters for November, 2003 revealed payments for 41585, 42750, 35348 and 31350 connections to Star (I) Pvt. Ltd., M/s ESPN-Star Sports, M/s Zee Turner and M/s Sony Entertainment respectively. Therefore, statements of Sri. Karim Shaikh, Accounts Manager of ICC, Sri. Sunil Sharma, Sales Executive of M/s Zee Turnover, Sri. Pradeep Nair, Territory Manager of Set Discovery Pvt. Ltd., Sri. Samir Kulkarni, Area Manager of ESPN and Sri. Manoj Bhatia, Proprietor of M/s Superlex Trading Corporation were recorded. It was noticed that the figures of subscriber base as furnished by the appellant to the department was much lower than the information received from the broadcasters and the statements of payments received from ICC by the broadcasters also corroborated THE huge difference between the two figures. Statement of Sri. Ejaz Inamdar of ICC was also recorded wherein he adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has to be borne by the appellant, the service provider. (4) The broadcasters determine the amounts they want to collect from a given area and thereafter, arrive at the subscriber base by adopting a lower subscription fee. Actually, the subscription per subscriber charged from the appellant is Rs. 60 per subscriber whereas in the agreement, the subscriber fee is taken @ Rs. 30, thereby doubling the subscriber base. (5) A similar investigation undertaken by the Income Tax department on the same basis adopted by the service tax department for determination and demand of income tax was set aside by the Income Tax Appellate Tribunal vide order dated 31-1-2012 in appellant's own case. (6) The payment of entertainment tax to the State Government adopting the subscriber base declared to the Broadcasters will not affect the service tax case as the measure of levy of entertainment tax is number of subscribers and not the consideration received whereas in the case of service tax, the measure of levy is consideration received for the services rendered. There is no evidence adduced by the Revenue to show that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted therein has a statutory basis and the appellant cannot deny or wish away the same. Once the subscriber base is decided as per law, the same would apply in respect of other laws also including service taxation. Therefore, the demand of service tax on the basis of subscriber base adopted under TBCR cannot be faulted. (2) As regards the ITAT decision in appellant's own case, the ld. AR submits that the assessment in the said case was done by the Income Tax department not on the basis of TBCR but on the basis of Electricity Connections in the area provided by Maharashtra State Electricity Board and 40% of the electricity connection was taken as the subscriber base of the cable operator for determination of income. The ITAT rejected the basis for determination of income as arbitrary and held that the assessment has to be done based on the books of accounts of the tax payer, however inaccurate or incomplete the accounts may be. This decision has no relevance to service tax assessment. (3) The ld. AR further submits that the appellant has also adopted the subscriber base prescribed under TBCR for payment of entertainment tax which also suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 982 (10) ELT 386 (Mad.)], the Hon'ble Madras High Court has observed that "the right to cross-examine is not necessarily a part of reasonable opportunity. Whether in a particular case, a particular party should have the right to cross-examine or not depends upon the facts and circumstances of the case and it very largely depends upon the adjudicating authority who is not guided by the rules of evidence as such" but who must afford such opportunity to the party concerned as would ensure him proper opportunity to defend himself. In the present case, it is not the contention of the appellant that they have not been provided with such opportunity. Accordingly, we reject the contention of the appellant raised in this regard. 5.3 Section 11(1) the Telecom Regulatory Authority of India Act, 1997 provides for the functions to be undertaken by the said authority. Clause (d) of the said section mandates the said authority to "regulate the arrangement amongst service providers of sharing their revenue derived from providing telecommunication services". In terms of the said provision, Telecommunication (Broadcasting and Cable Services) Inter-connection Regulation has been enacted. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5.6 In Tamilnadu Electricity Board & Anr. Vs. N. Raju Reddiar [1996 AIR 2025], the hon'ble apex court has lucidly explained the relevant of a written agreement as a piece of evidence in the following words:- "At the outset it must be borne in mind that the agreement between the parties was a written agreement and therefore, the parties are bound by the terms and conditions of the agreement. Once a contract is reduced to writing, by operation of Section 91 of the Evidence Act, it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under Section 92 of the Evidence Act where the written instrument appears to contain the whole terms of the contract then parties to the contract are not entitled to lead any oral evidence to ascertain the terms of the contract. It is only when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity, then oral evidence is permissible to prove the other conditions which also must not be inconsistent with the written c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of such assessment." The impugned order which is under challenge before us seeks to precisely do this based on the material gathered during the investigation and therefore, the said order is strictly in accordance with the legal provisions. Therefore, the determination of service tax liability in the impugned order cannot be challenged at all, especially in the absence of any contrary evidence adduced by the appellant as to its subscriber base. 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. 5.9 The last issue for consideration is regarding the penalty imposed on the appellant. The adjudicating authority has imposed penalties on the appellant both under sections 76 and 78 of the Finance Act, 1994. While the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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