TMI Blog2015 (9) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. - adjudicating authority was correct in dropping the proceedings initiated by the show cause notices for the period January 2006 to September 2009 - however demand for the period October 2005 to December 2005 confirmed - Decided substantially in favor of assessee. - Appeal No. ST/76/11 - Final Order No. A/2383/2015-WZB(STB) - Dated:- 6-8-2015 - M. V. Ravindran, Member (J) And Raju, Member (T), JJ. For the Appellant : Shri K S Mishra, Addl. Commissioner (AR) For the Respondent : Shri G Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the first agreement entered by the respondent (dated 22/02/2005) and submit that the said agreement talks about the consideration payable by the appellant to star India. He would submit that the said agreement talks about approximately 86,000 subscribers to be included in specific consideration, but the appellant did not pay the service tax on the entire subscriber base but discharged service tax on actual number of subscribers which was less. He would further submit that subsequent agreements between respondent and star India did not have the subscribers to the serviced but indicated only amount payable which is incorrect approach for discharging the service tax liability. It is his submission that service tax liability is payable on nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged by the respondent. He would submit that in view of the major discrepancy, study was initiated by the Telecom revelatory (sic) authority and report was submitted to Apex Court and it was reported that there was no reliable information on the number of subscribers receiving various channels from broadcasters and it was also recorded that subscription to the broadcasters are negotiated and based on this amount subscriber base of MSO is arrived at. He would submit that the decision of the Tribunal in their own case is to be read in the facts of that case wherein number of the subscribers is indicated in the agreement. 5. We have considered the submissions made at length by both sides and perused the records. 6. The issue in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riber base declared in the agreements with the broadcasters and the subscription charges given in the bills/invoice issued to the subscribers, can service tax demand be made and whether such an assessment of tax liability can be considered as arbitrary. Prior to its omission with effect from 10-9-2004, section 72 of the Finance Act, 1994 provided for best judgment assessment and read as follows:- 72. Best judgment assessment. - If, - (a) any person fails to furnish the return under section 70, or (b) having made a return, fails to assess the tax in accordance with the provisions of this Chapter or rules made thereunder, The Central Excise Officer, may require the person to produce such accounts, documents or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to discharge the differential service tax liability taking the subscriber base as per the agreement in force. The respondent is also required to discharge the interest on the said differential service tax. 9. We find that the subsequent agreements entered by the respondent with Star India for the period from January 2006 to September 2009 do not indicate number of subscribers in the Annexure's but indicates the subscription fees to be paid by the respondent to star India. Specimen Annexure-B is reproduced below. It can be seen from the above reproduced specimen Annexure of the agreement dated 07/02/06 that the respondent had contracted and agreed to pay a specific amount for and as a subscription fee. This arrangement is co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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