2025 (11) TMI 127 - AT - Service Tax

Partly allowed appeal: demand confined to normal limitation; Cenvat Credit Rules, 2004 limit claims; Sections 77,78 penalties set aside

M/s Awas Vikas Cable Network Versus Commissioner of Central Excise & CGST, Kanpur

CESTAT (Allahabad) partly allowed the appeal, holding that the impugned demand based on a subsequent decision could not invoke the extended period of ... Recovery of sevice tax under proviso of Section 73 (i) of the Finance Act, 1994 with interest and penalty - providing taxable branded services covered under the definition of Cable Operator Service - availability of benefit of threshold exemption under N/N.33/2012-ST dated 20.06.2012 - demand based on decision of Chandigarh Bench in case of Blue Star Communications [2019 (2) TMI 1385 - CESTAT CHANDIGARH] invoking extended period of limitation and ley of penalties - Admissibility of CENVAT Credit - Demand based on decision of Chandigarh Bench in case of Blue Star Communications [2019 (2) TMI 1385 - CESTAT CHANDIGARH] invoking extended period of limitation - HELD THAT:- It is found that the basis for making the demand against the appellant is decision of Chandigarh Bench in case of Blue Star Communications. It is settled principal in law that a subsequent judgment cannot be a basis for making the demand by invoking extended period. In this decision Tribunal has concluded that extended period of limitation would not be available for making this demand. Accordingly, it is inclined to hold that extended period of limitation would not be available for making this demand and the demand should be restricted to normal period of limitation. Admissibility of Cenvat credit - HELD THAT:- There are no reason to disagree with the findings recorded in the impugned order. The credit has to be allowed strictly as per the provisions of the Cenvat Credit Rules, 2004 and appellant should have taken the credit within one year from the date of submission of document against which credit has been taken. In the case of Kusum Ingots & Alloys Ltd. [2000 (7) TMI 108 - CEGAT, NEW DELHI] referred by Authorized Representative appearing for revenue, Tribunal have upheld the denial of credit taken beyond the period prescribed by Central Excise Rules, 1944 - it is not inclined to allow the benefit of Cenvat credit availed in respect of the documents which admissibly are more than one year beyond one year from the date of issuance of show cause notice which goes contrary to Rule 4 of Cenvat Credit Rules. Thus, extended period of limitation could not have been invoked in this matter, therefore, penalty imposed under Section 78 is also set aside. Penalties imposed under other provisions of Section 77 are also set aside. The matter is remanded back to the Original Authority for re-quantification - Appeal is partly allowed and matter remanded to Original Authority for re-quantification of demand. ISSUES PRESENTED AND CONSIDERED 1. Whether local cable operators (LCOs) providing retransmission of television signals through subscription networks are taxable as 'cable operator' services under the Finance Act, 1994. 2. Whether service tax liability can be invoked for an extended period (proviso to Section 73(1) read with Section 68 and Rule 6) where demand is founded on later tribunal decisions/principles developed after the relevant period. 3. Whether amounts collected as Entertainment Tax and paid to the State are includible in the taxable value for service tax, and whether deduction of such tax from assessable value is permissible absent separate invoice particulars. 4. Whether a local cable operator providing signals from an MSO constitutes provision of a 'branded service' (affecting applicability of Notification No. 33/2012-ST threshold exemption). 5. Admissibility of Cenvat credit by an LCO for service tax paid by the MSO on input services - scope of input credit and temporal limits/conditions under the Cenvat Credit Rules, 2004 (including Rule 4(7), Rule 9(6), Rule 9(9)). 6. Whether penalties under Sections 77 and 78 of the Finance Act, 1994 are sustainable where extended period cannot be invoked and where registration/return non-filing/ suppression are alleged. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Taxability of LCOs as 'Cable Operators' Legal framework: Definitions in Section 65(21)/65(22)/65B(44) of the Finance Act read with Section 2(aa), 2(b), 2(c), 2(i)/(f) of the Cable Television Networks (Regulation) Act, 1995; Notifications extending service tax to cable operators and MSOs; relevant CBEC Circulars. Precedent treatment: Tribunal and High Court decisions have treated LCOs re-transmitting signals to last-mile subscribers as cable operators liable to service tax; circulars clarified extendibility to MSOs and completion of the service tax chain. Interpretation and reasoning: The Tribunal read statutory definitions literally - an LCO who retransmits broadcast television signals to subscribers fulfills the CTN Act definition of 'cable operator' and provides 'cable service' taxable under the Finance Act. The MSO/LCO relationship does not absolve the LCO of liability merely because MSO pays tax upstream; the statutory scheme contemplates taxation at different stages with input credit mechanisms addressing overlap. Ratio vs. Obiter: Ratio - LCOs retransmitting to subscribers are taxable as cable operators; prior authority and circulars support this as binding reasoning. Obiter - policy remarks on the service-tax chain and MSO role. Conclusion: LCOs retransmitting MSO signals are taxable as cable operators and liable to service tax under the statutory definitions. Issue 2 - Invoking Extended Period of Limitation Legal framework: Proviso to Section 73(1) of the Finance Act, 1994 (extended period), Section 68 and Rule 6 (determination of value/offences of suppression), and limitation jurisprudence concerning triggers for extended assessment. Precedent treatment: It is a settled principle that a subsequent judicial decision cannot, by itself, be the basis for invoking the extended period to make retrospective demands; extended period must be triggered by facts showing suppression or intent within the statutory language. Interpretation and reasoning: The Tribunal held that reliance on a subsequent bench decision (Chandigarh Bench decision) as the basis for invoking extended limitation is impermissible. Where the Department's demand is premised on legal positions crystallized only later, extended limitation cannot be applied merely because a later authority validated a view; extended period requires independent factual suppression or fraud within the statutory parameters. Ratio vs. Obiter: Ratio - extended period cannot be invoked solely because a later judicial/tribunal decision validates the Department's view; limitation must be examined against facts contemporaneous to the assessment period. Conclusion: Extended period of limitation was not available for the demand in the particular matter; demand must be restricted to the normal limitation period, and penalties grounded on extended period are liable to be set aside. Issue 3 - Treatment of Entertainment Tax in Taxable Value Legal framework: Section 67 read with CBEC clarifications (Annexure-IX letter of 01.08.2002) and state Entertainment Tax statutes defining 'aggregate payment' and 'admission', together with practice on cum-tax valuation (Section 67(2)). Precedent treatment: CBEC circulars and tribunal decisions (Universal Communication) permit deduction of Entertainment Tax from assessable value if payment of the tax is established even if not shown separately in invoices; CENVAT/valuation clarifications endorse exclusion where tax element is identified. Interpretation and reasoning: State Entertainment Tax statute defines aggregate payment to include entertainment tax; gross receipts computed backward from entertainment tax constitute aggregate payment which includes entertainment tax. CBEC clarification permits non-inclusion of entertainment tax in taxable value provided the tax element is clearly indicated or its payment is otherwise established. The Tribunal accepted documentary proof of entertainment tax payment and allowed deduction, and granted cum-tax benefit under Section 67(2) where applicable. Ratio vs. Obiter: Ratio - entertainment tax paid and established may be excluded from service taxable value; cum-tax benefit available when service tax was not collected separately and conditions of Section 67(2) are met. Obiter - procedural note on need for clear invoice particulars. Conclusion: Entertainment Tax paid to the State is not includible in taxable value where its payment is demonstrated; deduction and cum-tax valuation benefit were allowed for the re-quantified demand. Issue 4 - Branded Service and Threshold Exemption (Notification No. 33/2012-ST) Legal framework: Notification No. 33/2012-ST (threshold exemption of Rs.10 lakh) and definition/criteria for 'branded service'. Precedent treatment: Exemption applies only where provider is not supplying branded services as defined or where conditions of notification are satisfied based on prior year aggregate values. Interpretation and reasoning: Tribunal found that the LCO merely retransmitted MSO signals and did not provide any branded service to subscribers (no brand relation to ultimate customers). Application of Notification 33/2012-ST depends on preceding financial year aggregate taxable value; records showed prior year receipts exceeding the threshold for several years, but one year (2013-14) fell below the threshold enabling exemption for the subsequent year (2014-15) only. Ratio vs. Obiter: Ratio - non-provision of a branded service means potential eligibility for threshold exemption, subject to the numeric criteria of prior year receipts; obiter - factual application to particular years. Conclusion: Appellant not providing branded service; entitlement to threshold exemption only for the year where prior year aggregate value was below Rs.10 lakh (FY 2013-14 ? FY 2014-15), and not for other years where receipts exceeded the threshold. Issue 5 - Admissibility and Temporal Limits of Cenvat Credit for MSO-paid Service Tax Legal framework: Cenvat Credit Rules, 2004 (Rules 4(7), 9(6), 9(9)); principles on input credit admissibility and time limits; analogous Central Excise Rules/precedents on MODVAT/credit limitation (Osram Surya, Kusum Ingots, Kusum Ingots larger bench reasoning). Precedent treatment: Tribunal decisions allowed that service tax paid by MSO on signals used by LCOs constitutes input service and is, in principle, eligible as Cenvat credit, but credit must be availed strictly conforming to Cenvat Rules including temporal limitations; Courts have upheld denial of credit when taken beyond prescribed time limits and have treated such rules as limitation on the remedy. Interpretation and reasoning: Applying the CESTAT Chandigarh ratio that MSO-paid tax may be an input service, the Tribunal nevertheless reiterated the strict procedural/temporal requirements: registration, maintenance of records, filing ST-3 returns, and taking credit within one year (or other specified periods) are mandatory. Failure to register, file returns, or maintain records results in ineligibility regardless of substantive entitlement. Established jurisprudence treats such limits as operative restrictions on the right to take credit; post-hoc reconstruction without compliance does not revive the right. Ratio vs. Obiter: Ratio - input service tax paid by MSO may be creditable, but claimants must satisfy documentary and temporal conditions of the Cenvat Credit Rules; failure to comply leads to denial. Obiter - references to analogous MODVAT jurisprudence and principles of limitation. Conclusion: Cenvat credit could be available in principle for MSO-paid service tax, but was denied for the appellant because statutory conditions (registration, ST-3 filing, timely claim within prescribed periods, maintenance of records) were not fulfilled. Issue 6 - Penalties under Sections 77 and 78 Legal framework: Sections 77 (penalty for failure to comply with provisions relating to registration/returns) and 78 (penalty for suppression/intent to evade) of the Finance Act, 1994; invocation of extended period influences applicability of Section 78. Precedent treatment: Penalties for suppression require proper invocation of extended period when suppression is alleged; where extended period is disallowed, penalties based solely on such invocation are liable to be set aside. Penalties under Section 77 for non-filing of returns are sustainable when default in statutory filing is proved. Interpretation and reasoning: Because the Tribunal concluded extended period could not be invoked (Issue 2), the penalty under Section 78 (which was tied to extended limitation and suppression findings) was set aside. However, the Tribunal sustained penalty under Section 77(2) for failure to file ST-3 returns (statutory non-compliance), observing that non-registration and non-filing were established facts warranting the statutory penalty of Rs.10,000 for the period in question. Ratio vs. Obiter: Ratio - penalties predicated on extended period/suppression are unsustainable where extended period is not available; penalties for clear procedural non-compliance (non-filing/non-registration) can be sustained. Obiter - guidance on adjustment of deposits and re-quantification. Conclusion: Penalty under Section 78 set aside because extended period could not be invoked; penalty under Section 77(2) for non-filing of returns is upheld. Demand to be re-quantified for the normal period with adjustment of any deposits.