TMI Blog2019 (8) TMI 1688X X X X Extracts X X X X X X X X Extracts X X X X ..... idth as they do not possess a satellite of their own to beam such signals - It is, therefore, clear that the fixed satellite is for broadcasting or beaming of contents and is beyond the scope of Infrastructural Support Service - the demand made in the impugned order is, therefore, not sustainable. Management, maintenance or repair service or not - Maintenance of software as per agreement with M/s Aveco and M/s Octopus in respect of Maintenance of Software and Upkeep of Hardware services obtained by the Appellant from the overseas entities - scope of SCN - HELD THAT:- The show cause notice proposed demand of service tax under the category of Management, Maintenance or Repair Service, and therefore, the confirmation of service tax under the category of ITSS is beyond the scope of show cause notice. The impugned order, thus, has travelled beyond the show cause notice, and therefore, is not sustainable. The Commissioner has rightly dropped the demand pertaining to Maintenance, Management and Repair service pertaining to period prior to 16.05.2008, which is any case would not have come within the sweep of Management, Maintenance or Repair Service. Therefore, the appeal fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.09.2009 16.05.2008 to 31.03.2009 2 15.03.2011 01.10.2009 to 31.08.2010 NA 3 24.04.2012 01.09.2010 to 31.03.2011 NA 4 05.09.2012 01.04.2011 to 31.03.2012 NA 4. The demand was raised for non-payment of service tax on service imported under the category of Broadcasting Services as per contract dated 29.06.2005 between the Appellant and M/s Echostar Satellites , LLCUSA (hereinafter referred to as the Echostar ) . It has been observed that the transmission services rendered by the Echostar appeared to have been imported by the Appellant to open their TV channels in foreign territory. This service was proposed to be covered under the taxable category of Broadcasting Services as defined under Section 65(105)(zk) of the Finance Act, 1994. The Appellant, being a recipient of such services, it appeared to be liable to pay service tax on the amount paid to the service providers having fixed establishment outside India against the services of broadcast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany [2017-TIOL-1131-CESTAT-MUM], wherein it was held as under; 6. We also take note that the definition of the taxable service in Section 65(104c) of Finance Act, 1994 broadly includes all activities that are, in the normal course of business, matters of internal processes of an entity. These relate primarily to the various functional aspects of the working of an organisation such as production management, sales management, financial management and marketing management and that, when these essential work of an organisation is outsourced, the provider of outsources service is liable to be taxed. (ii) Reliance has also been placed on the following decisions; HAL Offshore Limited vs. Commissioner, [2018-TIOL-1631 CESTAT-DEL] BSNL vs. Commissioner, [2017-TIOL-2420-CESTAT-DEL] Paradise Investments vs. Commissioner [2017-TIOL-1842 CESTAT-DEL] Madras Race Club vs. Commissioner [2018-TIOL-2296 CESTAT-MAD] (iii) It is the submission of learned Advocate that the Appellant is not engaged in rendering any outsourced activity so as to come under the scope of BSS . (iv) It has further been submitted that the definition of BSS being inclusive definition, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.05.2008 under the category of ITSS cannot be sustained as the same is beyond the scope of show cause notice as the demand has been proposed under MMR. (viii) Learned Advocate also submitted that the extended period of limitation cannot be invoked in this case as the Appellant has not suppressed any fact with intent to evade the payment of service tax. The Appellant was under a bonafide belief that it was not liable to pay service tax. The show cause notice fails to indicate any positive act of suppression on the part of the Appellant and the invocation of extended period has been found to be merely on the ground of non payment of tax. (ix) It has also been submitted that even if service tax is required to be paid by the Appellant under the reverse charge on the said services, the same will be available as cenvat credit to the Appellant as the said services are used under the provisions of output services and, therefore, would result into a revenue neutral situation. In this regard, reliance has been placed on the following decisions; Jay Yuhshin Limited vs. Commissioner [2000(119)ELT 718 (Tri.-LB)] Commissioner vs. Narmada Chematur Pharmaceuticals Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as extracted above, would show that it does not cover the activities undertaken by the Appellant since it only uplinks and downlinks satellite beams at agreed and desired bandwidth provided by Intelsat and hence such an activity cannot be Infrastructural Support Services. It is also evident from the CBEC Circular dated 28.02.2006 that the Infrastructural Support Service covered under BSS is with reference to only those services which has been outsourced. The Department has presumed that the Appellant has outsourced their activity of uplinking and downlinking signal beams at agreed and desired bandwidth. The said view is not correct since the Appellant has not outsourced their activity of uplinking and downlinking contents to be received and broadcasted but has purchased the desired bandwidth as they do not possess a satellite of their own to beam such signals. The transaction, therefore, comes within the ambit of sale and is clearly covered by the decision of the Karnataka High Court in Antrix Corporation(supra), wherein it has been held that the transaction of providing transponder is one of sale as per Article 366(29)A of the Constitution, and therefore, not amenable to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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