TMI Blog2020 (3) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by M/s IGSML to M/s UEPL in view of supporting the business of the later classifying it as a business support service. Extended period of limitation - Penalty - HELD THAT:- The period of dispute is with effect from 2006-07 to 2009-10. The show-cause notice was received by the appellant only on 7th of April 2011 though it appears to have been issued on 24.03.2010 but we observe that department could not have produced any document of it to have been dispatched within the reasonable time or about the service thereof on the date other than as mentioned by the appellant. From the letter given by the appellant to the department in April 2011 itself which has duly been acknowledged by the department without objecting the date of receipt as mentioned therein, there are no reason to hold that the show-cause is beyond the prescribed period of limitation - The subsequent show-cause notice cannot propose the demand for a period beyond one year of the period in dispute nor can raise the allegation as that of suppression of facts or misstatement on the part of appellant that too with an intention to evade the tax. In these circumstances, the Proviso to Section 73 of the Finance Act extendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment was of the opinion that the service of providing transponders on hire basis by IGSML to UEPL appears to be classifiable under Business Support Services inviting tax liability from 1st May 2006 onwards resultantly a show-cause notice No. 215/2010-ST dated 24.03.2010 as was received by the appellant on 7.04.2011 was served upon M/s UEPL proposing to recover the service tax amounting to ₹ 3,79,26,213/- for the period from 2006-07 to 2009-10 along with interest at the appropriate rate and the proportionate penalty. This proposal has been confirmed by the Commissioner vide his order-in-original No. 15/2011 dated 30th June 2011 holding that the hire charges paid by the appellant to M/s IGSML for leasing of three numbers of transponders attached to the satellite owned by IGSML are liable towards service tax as the said value is received in lieu of providing business support service by the appellant to M/s IGSML. The proposal for recovery of interest and imposition of penalty was also confirmed. It is to assail the said order being aggrieved thereof that the appellant is before this Tribunal. 2. We have heard Shri M.V.S. Sridhar learned advocate for the appellant and Shri A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd [2008(229)ELT 667 (Tri-Ahmd) ii) Athungal Sales Corporation Vs CCE Cochin [2008(11)STR 40 (Tri-Bang)] In addition, it is submitted that even if for the sake of argument the hire charges for transponder are acknowledged to be liable to service tax, the same could have been availed by the appellant as CENVAT Credit since the transponder is an input in the output broadcasting services of the appellant as such it will be revenue neutral situation resulting into no loss to the govt. Learned A.R. while justifying the order in challenge has impressed upon that the transaction of leasing of transponders between the appellant and M/s IGSML is in the nature of import due to the reason that the later has no office in the territory of India. It is rather based in a foreign country. As such the question of attracting sales tax/VAT on such a transaction does not at all arise. It otherwise is an admitted fact the services of leasing of the said transponder rendered by M/s IGSML are in the nature of support services to the business of broadcasting undertaken by the appellant as the leased space in the transponder is used by the assessee to transmit the signals which are amplif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncorporated vide 46th Amendment of the Constitution in the year 1983 based on 61st report of law commission that the Constitution conferred exclusive power to the states to levy sales tax by explaining entry 54 list 2 by insertion of this article 366(29A) i.e. the subject matter of hire purchase and leasing was constitutionally characterised as deemed sale. It was clarified that the deemed sale was no more open to be taxed by the parliament under Entry No. 97 List (1). The said opinion was confirmed by the Hon ble Apex Court in the case of K.L. Johar ...........[1965(2)SCR 112. Hon ble Apex Court in the case of Gannon Dunkerley Madras [1959 SCR 379] has already held that words sale of goods had the same meaning which those words have in the Sale of Goods Act 1930. It was clarified in that case that the legislature cannot extend its taxing power by defining words sale of goods to cover transactions which had been constituted sale of goods within 1930 Act. In this case, the provisions of Madras General Sales Tax Amendment Act 1947 defining sale to include a works contract therefore held ultravires. In view of this decision we first need to understand what amounts to sale and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the two parties is situated outside the territory of India which is why the transaction between the two cannot be called as deemed sale. 6. Once the transaction is within the scope of sale and admittedly the transponder is hired by the appellant from M/s IGSML for supporting his business of broadcasting we are of the opinion that department has rightly categorised the said transaction as an activity being provided by M/s IGSML to M/s UEPL in view of supporting the business of the later classifying it as a business support service. 7. Irrespective of those findings we are unable to accept the demand confirmed as a whole in view of the ground of limitation raised by the appellant. We observe that period of dispute is with effect from 2006-07 to 2009-10. The show-cause notice was received by the appellant only on 7th of April 2011 though it appears to have been issued on 24.03.2010 but we observe that department could not have produced any document of it to have been dispatched within the reasonable time or about the service thereof on the date other than as mentioned by the appellant. From the letter given by the appellant to the department in April 2011 itself which has duly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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