TaxTMI 
TaxTMI 
2025 (3) TMI 196
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....ndicated in the Column 4 of the appeal. As the issue involved in all the appeals is identical and the impugned orders are identically worded I have taken up all the appeals for consideration simultaneously. S No APPEAL No. APPELLANT Order in Appeal No & date 1 2 3 4 1 ST/70605/2021 M/s GANESH COMMUNICATION 145/ST/Alld/2021 dated 31/05/2021 2 ST/70073/2022 M/S SANA CABLE NETWORK 158/ST/Alld/2021 dated 21/06/2021 3 ST/70082/2022 M/S KESHAV CABLE NETWORK 242/ST/Alld/2021 dated 13/08/2021 4 ST/70083/2022 M/S NEW FRIENDS CABLE NETWORK 222/ST/Alld/2021 dated 12/08/2021 5 ST/70101/2022 M/S GUNJA CABLE Order-in-Appeal No.241/ST/Alld/2021 dated 13/08/2021 6 ST/70130/2022 M/S RR MULTICHANNEL 341/ST/Alld/2021 dated 17/11/2021 7 ST/70347/2022 M/s WORLD VISION 29/ST/Alld/2022 dated 17/02/2022 8 ST/70348/2022 M/s MAHAK COMMUNICATION 59/ST/Alld/2022 dated 25/03/2022 9 ST/70555/2024 M/s ISMEET MULTI CHANNEL 238/ST/Alld/2021 dated 13/08/2021 10 ST/70635/2024 M/s HARI CABLE NETWORK 61/ST/Alld/2022 dated 25/03/2022 11 ST/706372024 M/s MAA VAISHNO CAB....
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....iii) Penalty should not be imposed upon them under Section 78 of the Finance Act, 1994 for failure to pay Service Tax and for suppression of the value of taxable service with intent to evade the payment to service tax, thereby contravening the provisions of Section 68 of the Finance Act, 1994 read with Rule 6 of Service Tax (Determination of Value) Rules, 2006. (iv) Penalty should not be imposed upon them under Section 77(1)(a),77(1)(b), & 77(1)(c) of the Finance Act, 1994, for failure to take registration under the category of "Cable Operator Service" within time and manner as prescribed under Section 69 of the Finance Act, 1994 read with Rule 4 of the Service Tax Rules, 1994, failed to maintained books of Accounts and other documents, failed to furnish information and produced documents called by the Department (as amended), (v) Penalty should not be imposed upon them under Section 77(2) of the Chapter V of the Finance Act, 1994 for contravention of Section 70 of the Act Ibid read with Rule 7 of the Rules ibid." 2.4 The said show cause notice was adjudicated as per the Order-in-Original No.14/ST/ACK-II/2020 dated 31.07.2020 by holding as follows:- "O....
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....urns claimed that they have paid in total Rs.01,06,093/- as service tax for the disputed period. 3.3 Learned Authorized Representative reiterates the findings recorded in the orders of the lower authorities. Further, she places reliance upon the following decisions in support- Kusum Ingots & Alloys Ltd. [2000 (120) ELT 214 (T-LB)]; BHEL [2007 (219) ELT 609 (T-Bang)] Rathi Ispat Ltd. [2010 (251) ELT 199 (All)] NVK Mohamed Sultan Rawther & Sons [2009) ELT 741 (T- Chen)] Ashok Leyland Ltd. [2005 (187) ELT 355 (T-Chen)] 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 For upholding Order-in-Original, impugned order records as follows:- "4.2 I take up the issues one by one for decision. Firstly, the core issue of taxability on account of "Cable Operators" under tile category of "Cable Services" needs to be discussed. I observe that the Cable Operators Service provided by Cable Operators was first time brought under the ambit of Service Tax vide Notification No. 08/2002-ST dated 01.08.2002 and as per Section 65(21) of the Finance Act, 1994, "Cable opera....
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....10/2004-ST dated 17.09.2004, explained the changes made in the budget for 2004-05 as under: "Extension of service tax on cable operators to Multi system operators (MSOs): In cable TV services, broadcast channels transmit television signals to multi system operators (MSO) who further send them to the cable operator. The services provided by the MSOs to the cable operators have been made taxable 4.3.1 Furthermore, CBEC vide circular No F.No.B11 6 12005-TRU dated 27.07.2005, explained the changes in the budget for 2005-06 as under: "In the case of radio or TV broadcasting services, the services are subject to tax where the services are effectively used and enjoyed. Multi System Operators (MSOs) are permitted to receive signals from the broadcasting agencies on payment of prescribed amount. Cable operators transmit programmes to customers through cable network after receiving signals from the multisystem operators (MSOs). Prior to 16.06.2005, service tax was leviable on services provided by cable operators to their customers and multisystem operators to cable operators. In this year's budget, the charges recovered by the broadcasting agencies from the mul....
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....Siti Cable Networks Limited vs Govt. of NCT of Delhi &ORS. [W.P. (C) 427/2014 & CM No. 851/2014)], Hon'ble Tribunal in the case of Krishna Satellite Cable Network vs CCE, Jaipur reported in 2008 (12) S.T.R. 605 (Tri. Del) and CESTAT, Chandigarh in its Final Order No A/60167-60171/2019 dated 22.2.2019 pronounced in the case of M/s Blue Star Communication & others Vs CCE, Ludhiana. 4.4 From the above discussion, it is clear that as the MSO had provided the service through the LCOs, the individual LCOs having their own subscription network were regarded as the cable operators and were liable to pay the service tax. Thus, the contention of the appellant that since MSO has already paid service tax, therefore, they are not liable to pay service tax is devoid of merit. 4.5 The appellant has also contested that in the present case the MSO were paying service tax on the same transmission received by them from the Television Channels and the cable operators again being asked to pay the service tax on the same transmission received from Television Channels leads to the double taxation on the same service. The appellant has relied upon the judgment of Hon'ble High Cou....
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....services is available while paying service tax on output services. The same is also supported by Circular No. F. No. B2/8/2004-TRU dated 10-9. 2004, para 29. 10. Accordingly, both the writ petitions are dismissed". 4.6 Now I take the issue whether the appellant is providing branded service or not. I observe that in this case, the appellant is cable operator and providing cable services to the subscribers on the basis of signals received from the MSO ie M/s DEN. 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 M/s DEN is supplying signal to the appellant which has been transmitted to the subscribers, in that circumstances, there is no relation of brand name to the ultimate customers. Therefore, I hold that the appellant is not providing any branded service to the subscribers; therefore, the appellant is entitled to avail the benefit of exemption Notification No. 33/2012-ST dated 20.06.2012. 3.7 As regard the issue of admissibility of Cenvat credit of the service tax paid by the MSO Le M/s DEN, I find that the matter has been decided by the CESTAT, Chandigarh in s....
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....stration nor filed any ST-3 returns, whereas under the self-assessment procedure specified in the statute, they were required to assess & pay their Service Tax liability correctly, on their own. The non- Payment of Service Tax could be detected only during the course of enquiry conducted by the Department. Thus, it is a clear case of suppression of facts and contravention of the statutory provisions, with intent to evade payment of Service Tax Thus, I find that extended period of limitation has been rightly invoked in this case for confirming the demand of Service Tax and imposing penalty under Section 78 of the Act. Further, I also observe that the appellant has failed to take service tax registration in due time, failed to maintained proper records & also failed to furnish the information/documents to the department, therefore, penalties imposed by the adjudicating authority under Sections 77(3) 77(1)(b) & 77(1)(c) of the Act are justified. The appellant has never filed ST-3 returns, therefore, penalty imposed by the adjudicating authority for non-filing of ST-3 returns for the period April 2013 to June 2017 under section 77(2) of the Act is also justified." 4.3 I find that th....
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....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 purpose of indicating, or so as to indicate, a connection in the course of trade between the product and some person using such name or mark...". In the present case, the markings on the jute bags are not for the purpose of indicating a connection in the course of trade between the jute bag and some person using such name or mark. The markings are by compulsion of law only in order that Governmental Authorities involved in the PDS may identify and segregate the aforesaid jute bags. This being the case, it is obvious that there is no "brand name" involved in the facts of the present cases. 22. The facts of these cases are ....
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.... 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. Therefore, we hold that the extended period is not invokable as held by the Tribunal in the case of Trans Yamuna Communication Pvt. Ltd. Vs. Commissioner of Service Tax, Delhi - 2017 (52) STR 31 (Tri.-Del.) wherein this Tribunal observed as under:- "4. I have heard both the sides and perused the appeal records. As noted above, the tax liability is not in dispute. It appear that the scope of activities undertaken by the appellant is not falling under generally understood activities of cable operator who is involved in distribution of television signals....
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.... 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 according to us is the plain meaning which is to be attached to Section 67 (unamended, i.e., prior to May 1, 2006) or after its amendment, with effect from, May 1, 2006. Once this interpretation is to be given to Section 67, it hardly needs to be emphasised that Rule 5 of the Rules went much beyond the mandate of Section 67. We, therefore, find that High Court was right in interpreting Sections 66 and 67 to say that in the valuation of taxable service, the value of taxable service shall be the gross amount charged ....
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....should be restricted to normal period of limitation. 4.5 With regards to admissibility of Cenvat credit, I do not find any reason to disagree with the findings recorded in the impugned order. The credit have to be allowed strictly as per the provisions of the Cenvat Credit Rules 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. (supra) referred by Authorised Representative appearing for revenue, Tribunal have upheld the denial of credit taken beyond the period prescribed by Central Excise Rules, 1944. In the said decision Tribunal has held as follows:- "12. We find that after the decision of the Hon'ble Supreme Court in the case of Eicher Motors Ltd. v. Union of India (Supra), Sub-Section XXVIII is introduced in Section 37 to provide for Rules which empower the Government to make rules for not allowing credit to be utilised for payment of duty on excisable goods, by Section 131 of Finance Act, 1999. Therefore, after this amendment reliance by the appellants on the decision in the case of Eicher Motors Ltd. v. Union of India will not help th....
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....ch reads as follows :- "(5) Credit shall also not be taken by the manufacturer after six months of the date of issue of any document specified in sub-rule (3) and where the intermediate products manufactured by the user of inputs specified under Rule 57J are received by the manufacturer, after nine months." 8. The above rule came up for consideration and interpretation before the Apex Court in the case of Osram Surya (P) Ltd. (supra) The validity of the said provision was not under challenge therein. The only controversy raised before the Apex Court was that the rule in question is not applicable in regard to the credits acquired by a manufacturer prior to coming into force of the rule. Disagreeing with the said proposition, the Apex Court observed that a plain reading of the said sub-rule clearly shows that it applies to those cases where a manufacturer is seeking to take the credit after the introduction of the rule and to cases where the manufacturer is seeking to do so after a period of six months from the date when the manufacturer received the inputs. It was held that the said sub-rule operates prospectively in regard to those manufacturers who seek to take ....
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....stice, then such construction should be preferred to the literal construction. [(See CIT v. J.H. Gotla (1985) 156 ITR 323 (S.C.)] 14. Keeping the above principles of interpretation of law, on a plain reading of relevant sub-rule (5) of Rule 57G would show that it admits no exception whatsoever for consideration of any claim of Modvat credit after the expiry of period of six months from the date of the commencement of the period of limitation. 15. Apart from the above, keeping in view the salutary principle applicable to the provisions dealing with the limitation that once the period of limitation has began, no subsequent event can stop it, the argument of the applicant is liable to be rejected. 16. Though in a slightly different context the Apex Court while interpreting Section 11A of Central Excise and Salt Act has observed that:- "Limitation period should not be stretched more than the elasticity supplied in the Section itself. So, the eventuality envisaged in S. 11A for the further lengthening of the limitation period must be strictly construed." 17. In Gurusahai Saigal v. Commissioner of Income Tax, Punjab, AIR 1963 SC 1062, a case u....