9911796707
TMI Blog2019 (2) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... m whom the appellants receive the signals for re-transmission to the subscribers. For the portion remitted to M/s Fastway, M/s Fastway is discharging service tax liability or the consideration received from the appellants and the subscription retained by the appellant, if they are falling below the threshold exemption limit in terms of Notification No. 6/2005-ST dated 1.03.2005, the appellants were not paying service tax on the ground that they are not liable to pay service tax and did not get some registered with the department. On the basis of intelligence, the appellants were asked to provide the details of their activity and immediately, thereafter investigation was conducted at the end of the MSO i.e. M/s Fastway. The revenue collected data from M/s Fastway and for the data supplied by M/s Fastway, various show cause notices were issued to the appellants to demand of service tax on the gross amounts received by the appellants from the subscribers for providing cable operator services. The show cause notices were adjudicated, demand of service tax on gross amount of service charged by the appellants were confirmed by denying the benefit of exemption Notification No. 06/2005-ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to pay service tax only the amounts actually retained by the appellants and not the amounts remitted to the MSO, i.e. Fastway. 5. He further submitted that the extended period of limitation is not invokable as there was a bonafide belief on the part of the appellants that they are not liable to discharge service tax, as they are entitled for exemption under Notification No. 6/2005-ST dated 1.03.2005. Moreover, there was a confusion in the entire industry with respect to the liability of local cable operators to discharge the service tax. For this, he relied on the decision of the Tribunal in the case of Trans Yamuna Communications Pvt. Ltd. Vs. CST - 2017 (52) STR 31 (Tri.-Del.), Krishna Satelite Cable Network vs. CCE 2008 (12) STR 605 (Tri.-Del.), Dinesh Cable Network vs. CCE 2012 (4) TMI 471 (CESTAT, New Delhi) and Final Order dated 27.07.2017 in the case of Panchsheel Communication Network Pvt. Ltd. Vs. CST in Appeal No. ST/57904/2013. 6. He further submitted that the demand has been incorrectly calculated and demands have been made against the appellants by invoking the provision of Section 72 of the Finance Act, 1994. In fact, the appellants were never given time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following issues emerges as under:- a) Whether the appellants are providing branded service or not? Consequently they are entitled for exemption under Notification No. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012. b) Whether the extended period of limitation is invokable or not? c) Whether the best judgement under Section 72 of the Finance Act, 1994 has been assessed correctly or not? d) Whether the appellants are liable to pay service tax on the gross value of the services provided by them or not? e) Whether the appellants are entitled for cenvat credit of service tax paid by the MSO or not? 12. Whether the appellants are providing branded service or not? Consequently they are entitled for exemption under Notification No. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012. In this case, the appellants are cable operator and providing cable services to the subscribers on the basis of signals received from the MSO. The subscriber has not asked for any brand for providing the said services. In fact, the appellant is also not providing any branded service as MSO is supplying signal to the appellants which has been transmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired on the jute bags are compulsory, being required by the Jute Commissioner, and are not for the purpose of enhancing the value of the jute bags by indicating a connection in the course of trade between the aforesaid products and the manufacturer of those products." Further, in the case of Maheshwari Industries (supra), the Hon'ble Apex Court observed the criteria for use of brand name which is as follows:- "1) It must be a name or mark such as symbol, monogram, label, signature or invented word or writing; (2) It must be used in relation to such specified goods, for the purpose of indicating a connection in the course of trade between such goods and some person using such name or mark, with or without any indication of the identity of that person; and (3) The mere fact that the specified goods manufactured by a person bear a brand name or trade name of another manufacturer, is not sufficient to conclude that those goods are manufactured by such other manufacturer or trader. 19. Therefore, it is clear that a person may be taken to be manufacturing specified goods, bearing a brand name or trade name only if the name, mark or symbol used as such, is intended to indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re involved in receiving satellite signals as a MSO. The Finance Act, 1994 borrows the definitions of 'Cable operator' and 'Cable service' from Cable Television Network (Regulation) Act, 1995. Considering scope of definition under Section 2(aa) of the said Act there is a possibility of bona fide belief for non-tax liability. Considering the ratio followed by the Tribunal in the abovementioned cases and also considering the facts of the present case, I find that it is a fit case for invoking the provision of Section 80 for waiver of penalties imposed on the appellant. Accordingly, the penalties are set aside and the appeal is allowed only to that extent." Therefore, no penalty is imposable on the appellants. c) Whether the best judgement under Section 72 of the Finance Act, 1994 has been assessed correctly or not? In this case, it is a fact on record, the appellants were not given time of supply the data of their activity and assessment has been done on the basis of the data supplied by the MSO which is not correct, therefore, we hold that the assessment under Section 72 of the Finance Act, 1994 is not correct. In that circumstances, the impugned demand is not sustainable, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants, some amounts of total subscriptions, the appellants are remitting to the MSO on which the MSO is paying service tax, therefore, the signal provided by the MSO to the appellant is an input services for the appellants. Therefore, the service tax paid by the MSO is available as cenvat credit to the appellants. In these circumstances, we hold that the appellants are entitled to avail cenvat credit of the service tax paid by the MSO. 13. In view of the above, the following order is passed:- a) the appellants are entitled for exemption under Notification No. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012. b) the extended period of limitation is not invokable. Consequently, no penalty is imposable on the appellants c) the appellants are liable to pay service tax on the gross value of services received by them and is entitled to avail cenvat credit of service tax paid on the amount remitted to the MSO. d) The adjudicating authority shall quantify the demand for the period within the period of limitation on production of data of services provided by the appellants of cable services to the subscribers within the 30 days of receipt of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
