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2015 (9) TMI 735 - CESTAT MUMBAI

2015 (9) TMI 735 - CESTAT MUMBAI - 2016 (41) S.T.R. 187 (Tri. - Mumbai) - Short payment of service tax - MSO / Cable operator services - under-reporting of number of subscribers - Held that:- the revenue has not produced any contrary evidence to indicate that appellant had larger subscriber base than as is declared in ST3 returns. The query from the bench as to any additional evidence being not noticed by the adjudicating authority, departmental representative was unable to show us any additiona .....

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otices 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 Natarajan, Adv. & Shri Ganesh K S Iyer ORDER Per M. V. Ravindran This appeal is filed by the revenue .....

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x 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 liability. Coming to such a conclusion he dropped the p .....

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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 .....

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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 .....

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05 calculated the service tax liability without considering the actual number of subscribers on whose services service tax is discharged 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 broad .....

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arging the service tax liability as MSO on the bills raised by them on subscribers to whom they given connections. It is the case of the revenue that the number of subscribers is under reported 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 .....

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ber of subscribers whom respondent will render service as MSO. The very same agreement was considered by the bench in the respondent's own case and held that service tax liability needs to be discharged on the agreement which indicated the number of subscribers. We reproduce that portion of the order. "5.8 The next question is whether on the basis of the subscriber base declared in the agreements with the broadcasters and the subscription charges given in the bills/invoice issued to the .....

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der, The Central Excise Officer, may require the person to produce such accounts, documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available or which he has gathered, shall by an order in writing, after giving the person an opportunity of being heard, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such as .....

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h 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." The above reproduced ratio squarely .....

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re'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 continued by different agreements for the period in question in this appeal. As against this, the revenue has not produced any contrary evidence to indicate .....

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