9911796707
TMI Blog2015 (9) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... rities as multi system operator and discharges service tax liability. An investigation was carried out against the respondent. It was noticed that they had under reported the number subscribers and there was short payment of the tax. Four show cause notices were issued demanding differential service tax liability for the period October 2005 to September 2009. The said show cause notices were contested by the respondent on merits. The adjudicating authority after considering the submissions made before him and on perusal of the agreement entered by the respondent with star India private Limited, came to a conclusion that the service tax liability discharged by the respondent assessee is correct and there is no short payment of service tax li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciated the facts correctly. He would submit that as per the Telecom Regulatory Authority of India it is required to indicate subscriber base which is as agreed by both service providers. He would submit that in the appellant's own case this Tribunal vide order dated 07/08/2014 as reported at -2014 -TIOL -1659 - CESTAT MUM held against the respondent and confirmed the demands. He would read the findings recorded by the Tribunal. 4. Learned advocate appearing for the respondent would draw our attention to the findings of adjudicating authority. It is his submission that the adjudicating authority has recorded that the subscriber base is purely notional and theoretical, one based on assumptions and presumptions. He would draw our atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondent and hence the subscriber base has to be reworked out and service tax liability needs to be discharged. 7. We find from records that the respondent enters into agreement with broadcasters annually for retrieving signals and passing them to his subscribers. The said agreements indicate the subscription fees to be given by the respondent to the broadcasters. In view of this it is imperative that agreement for the period in question needs to be read. We find that for the relevant period in question in this appeal is from October 2005 to September 2009. 8. For the demands raised for the period October 2005 to December 2005 it is noticed that the agreement dated 22/02/2005 was in force. On perusal of the said agreement it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee or refundable to the assessee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental representative was unable to show us any additional evidence gathered by the revenue. In the absence of any additional evidence that there being larger subscriber base, we find that the difference of service tax liability for the period January 2006 to September 2009 has been worked out based upon presumptions and assumptions. The subscriber base as calculated by the revenue for this period is a notional one, theoretical without any basis. We agree with the findings of the adjudicating authority that demands of differential service tax liability cannot be raised on presumptions and assumptions; in the absence of any evidence to show that respondent has provided services to under reported subscribers, collected the payments and did no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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