9911796707
TMI Blog2021 (7) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 1,3,2005 the appellant was not paying service tax on the ground that they are not liable to pay service tax and did not get registered with the Department. On the basis of intelligence, the appellant was asked to provide the details of their activity and immediately, thereafter investigation was conducted at the end of the MOS 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 notice was issued to the cable operators to demand of service tax on the gross amounts received by the appellant from the subscribers for providing cable operator services. The show cause notice was adjudicated, demand of service tax on gross amount of service charge by the appellant was confirmed by denying the benefit of exemption Notification No.06/2005-ST dated 1.3.2005 alleging that the appellant is providing branded service, therefore, they are not entitled for SSI exemption and demands have been confirmed by denying the benefit of Notification No.06/2005-ST dated 1.3.2005. Against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice to the subscribers and the said issue has been examined by the Hon'ble Apex Court in the case of RDB Industries (supra) wherein the Hon'ble Apex Court came to the occasion to examine the issue of brand name and observed as under:- "18. It is obvious that, on the facts of these cases, what is in fact affixed to the jute bags is the name of the procurer agency in question such as the FCI, the State Government of Punjab and so on, the crop year, the name of the jute mill concerned, its BIS certification number and the statement that the food grains are manufactured in India. It is clear that all the aforesaid markings have, on the pain of penalty, to be done by the manufacturers of the jute bags, given the Jute Control Order and the requisition orders made thereunder. Obviously, such markings are made by compulsion of law, which are meant for identification, monitoring and control by Governmental agencies involved in the PDS. Neither do such markings enhance the value of the jute bags in any manner nor is it the intention of the appellants to so enhance the value of jute bags, which is necessary if Excise duty is to be imposed. This flows from the expression "...for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of indicating a connection in the course of trade between such specified goods and the person using such name or mark, then the same may not fall within the definition of the expression brand name or trade name under the Explanation under paragraph 5 of the Exemption Notification." In view of the above cited judicial pronouncements, we hold that the appellants are not providing any branded services, therefore, the appellants are entitled to avail the benefit of exemption 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? We find that the appellants were under bonafide belief that they are not liable to pay service tax as they are entitled for benefit of exemption under notification no. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012, therefore, they did not pay service tax. Moreover, there was confusion in the industry during the relevant period whether the appellants are liable to pay service tax or the MSO liable to pay service tax on their activity, in that circumstances, the benefit of doubt goes in favour of the appellants. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this order and on the basis of the data supplied by the appellants, the correct service tax liability shall be determined by the adjudicating authority. Therefore, for that purpose, the matters need to be examination at the end of the adjudicating authority. d) Whether the appellants are liable to pay service tax on the gross value of the services provided by them or not? We find that in terms of Section 67 of the Finance Act, 1994, the appellants are liable to pay service tax on the gross value of subscription received by them. The said view having the support of the Hon'ble Apex Court in the case of Intercontinental Consultants and Technocrats Pvt. Ltd (supra) wherein the Hon'ble Apex Court observed as under:- "24. In this hue, the expression 'such' occurring in Section 67 of the Act assumes importance. In other words, valuation of taxable services for charging service tax, the authorities are to find what is the gross amount charged for providing 'such' taxable services. As a fortiori, any other amount which is calculated not for providing such taxable service cannot a part of that valuation as that amount is not calculated for providing such 'taxable service'. That accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
