9911796707
TMI Blog2018 (12) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Sales Tax (Appeals) the respondent No.2 herein in an appeal filed by the petitioner. 3. Brief facts are as under: The Petitioner is a company registered under the Companies Act, 1956 and is engaged in the business of broadcasting agent earning commission on advertisements and distribution of television channels of MTV Asia LDC and Nickelodeon Asia Holdings Private Limited. The issue at stake is petitioner's transactions of distribution income/subscription charges collected from sub-distributors whether would be faxed under the Maharashtra Value Added Tax Act, 2002 ("MVAT Act" for short). The Assessing Officer passed order of assessment under the MVAT Act and Central Sales Tax Act ("CST" for short) on 5th October, 2015 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local area. This fact was confirmed from the copies of agreement between appellant and various cable operators which are brought on record. So it is clear that the said income does not arise out of sale of goods defined in BST Act, 1959. As per Hon'ble Supreme Court judgment in case of M/s BSNL Ltd. It is decided that goods do not include electromagnetic waves on Radio frequences. As appellant's goods are of electromagnetic waves were squarely covered by above referred judgment, hence Sales Tax levied on distribution income on account of transmission of electromagnetic waves is deleted and consequential interest is also deleted regarding levy of PT at Rs. 20,728/, the appellant has not given any details to context this claim of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent petition. Appearing for the petitioner, learned counsel Shri Nankani submitted that respondent No.2 was bound by the earlier order passed by the Deputy Commissioner which was in favour of the petitioner, in which it was clearly held that the transactions in question were not exigible to value added tax. He submitted that the appellate authority could not have brushed aside the contention merely stating that there was no elaborate discussion in the earlier order. He pointed out that the order dated 12th January, 2007 passed by the Deputy Commissioner has not been reversed or set aside. He, therefore, submitted that the petitioner may not be relegated to appellate remedy since the same would invite the requirement of mandatory predeposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Deputy Commissioner in his order dated 12th October, 2007 had done. The principle of administrative and judicial hierarchy and the requirement of following binding proceedings even by Departmental Authority exercising quasijudicial functions is all too well settled. In case of Union of India Vs. Kamlakshi Finance Corporation Ltd. 1991(55) E.L.T.433(S.C.) the Supreme Court had observed as under : "6. Sri Reddy is perhaps right in saying that the officers were not actuated by any malafides in passing the impugned orders. They perhaps genuinely felt that the claim of the assessee was not tenable and that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is that we are not concerned here with the correctness or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harassment to assessees and chaos in administration of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee's contention, the department would lose revenue and would also have no remedy to have the matter rectified is also incorrect. Section 35E confers adequate powers on the department in this regard. Under Subsection (1), where the Central Board of Direct Taxes come across any order passed by the Collector of Central Excise with the legality or propriety of which it is not satisfied, it can direct the Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Under Subsection(2) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue will get the duty, though after some delay which such procedure would entail." 8. This is not to suggest that if the Department thinks that a certain taxable event or taxable transaction is escaping assessment, the Department has no remedy. If the Department is of the opinion that despite earlier order passed by the Deputy Commissioner, in the present case the transaction should be taxed by virtue of correct interpretation of applicable statutory provisions, it is always open to the Department to take the order of the respondent No.2 which he ought to have passed, into revision or appeal as may be available under the MVAT Act. Surely, the respondent No.2 cannot ignore an earlier order of the appellate authority involving the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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