TaxTMI 
TaxTMI 
2025 (4) TMI 1289
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....providing Cable Operator Service, taxable under Finance Act, 1994 but was not paying service tax as required. 2.2 Enquiry was initiated against the Appellant and it was observed that during the period April, 2013 to June, 2017 Appellant has short paid service tax amounting to Rs.11,61,686/- on the services provided by them. They had also not taken service tax registration in due time and also did not file any ST-3 returns during the said period. 2.3 A show cause notice dated 15.04.2019 was issued to the Appellant asking them as to why:- "17. Now, therefore, M/s Aman Vision, (Proprietor Shri Ranjeet Kaur), 38/131, 85, Gandhi Gram, Krishna Nagar, Kanpur is hereby required to show cause to the Deputy/Assistant Commissioner, Central Goods & Service Tax, Division-II, 117/7. Sarvodaya Nagar, Kanpur, as to why (i) The Service Tax amounting to Rs.11,61,686/- (including S. Tax, Education Cess, Higher Education Cess, Swach Bharat Cess and Krishi Kalyan Cess), as discussed above, should not be demanded and recovered from them by invoking extended period under proviso to Section 73(1) of Finance Act 1994 read with Section 68 of the Finance Act, 1994 and Rule 6 of Servic....
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....Finance Act, 1994 upon M/s. Aman Vision, 38/131, 85, Gandhi Gram, Krishna Nagar, Kanpur (Proprietor Shri Ranjeet Kaur)." 2.5 Aggrieved Appellant filed the appeal before the Commissioner (Appeals) who has vide the impugned order disposed of the appeal. 2.6 Aggrieved Appellant filed this appeal. 3.1 Counsel for the Appellant has requested for an adjournment. I have heard Shri Santosh Kumar, Authorized Representative for the Revenue. 3.2 As matter is in very narrow compass and has been settled decided in similar cases number of times, the request for adjournment made is not accepted and matter is considered on the basis of the available records. 3.3 Learned Authorized Representative for the Revenue reiterated the findings recorded in the impugned order. 4.1 I have considered the impugned order alongwith the submissions made in the appeal and during the course of arguments. 4.2 The impugned order records the findings as follows:- "4.1 I have gone through the records of the case, the averments made during the personal hearing and all other documents/material available on records. 4.2 I take up the issues one by one for decision. Firstly, the core i....
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....tion of 'service' and taxable service' given under Section 65B (44) of the Act which emphasized that "service" means any activity carried out by a person for another for consideration, and includes a declared service after introduction of negative tax regime w.e.f 01.07.2012. 4.3 I further observe that the CBEC vide Circular No. 80/10/2004-ST dated 17.09.2004, explained the changes made in the budget for 2004-05 as under: 17.09.20% of service tax on cable operators to Multi system operators (MSOs): In cable TV senises, 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 explained the changes in the budget for 2005-06 as under: 27.07.2005, "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 prog....
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....hese definitions it is clear that LCO is the cable operator when he re-transmits the TV signal as he fulfills the definition of the term Cable Operator when he provides cable service to the last mile subscriber. 4.3.3 The same view has been taken by the Hon'ble High Court of Delhi in its judgment dated 09.03.2017 in the case of M/s 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 presen....
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....less service was rendered to a viewer or consumer, has no merit. Similarly, contention that service tax is required to be paid twice on the same service is also without any merit, in view of the stand taken on behalf of the State in the written statement to the effect that in terms of Cenvat Credit Rules, 2004, credit of the service tax paid on input services is available while paying service tax on output services. The same is also supported by Circular No. F. No. 82/8/2004- 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 i.e 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 ....
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....nancial years is allowed to the appellant subject to fulfillment of other such conditions as provided under the Cenvat Credit Rules, 2004 for the admissibility of the same. In the instant case appellant has neither registered with the department during relevant period nor filed statutory ST-3 returns showing availment /utilization of eligible CENVAT credit in the said returns. Thus, it is evident that the appellant failed to avail CENVAT Credit on input services within prescribed limit of six months/one year thereby Contravened the sixth proviso to the Rule 4(7) of the CENVAT Credit Rules, 2004. It is well settled principle that the claim of CENVAT Credit taken and/or utilized crystallizes only when the appellant has maintained CENVAT credit records & files statuary returns before the Department claiming the eligible CENVAT credit in the said returns. Thus, the CENVAT Credit can only be availed by filing the statuary ST-3 return, if no return is filed, it cannot be presumed that appellant has legitimate credit available within the prescribed time limit & would be available for infinite period of time. The appellant has also failed to maintained/produced any CENVAT record for availm....
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.... justified." 4.3 I take note of the order of the Commissioner (Appeals) in the case of Alpha Cable Network [Order in Appeal No [83- 25/ST/ALLD/2019 dated 22.04.2019] wherein following has been held:- "4.2.6 I also find that Hon'ble CESTAT in the case of Universal Communication vs. Commr. of C. Ex., Cus, & S.T., Nagpur 2016 (45) S.T.R. 80 (Tri.-Mumbai), inter alia, held, as under:- Valuation (Service Tax) - Cable Operator Service - Deduction of Entertainment Tax - Notwithstanding that said Tax not shown separately in invoice as stipulated in C.B.E. & C. circular dated 1-8-2002, deduction of said tax from assessable value allowable if its payment otherwise established - in view of appellant submitting details of its payment to Government account through banking channel, matter remanded to adjudicating authority to verify payment particulars and if found in order, not levy any Service Tax on it - Section 67 of Finance Act, 1994. 4.3 Regarding the submission of the appellants for extending the benefit of cum-tax value, it is observed that it is not the case of the Department that the appellants had charged & collected Service Tax, from their customers, on ....
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....lty is imposable upon the appellants." 4.4 I find that Chandigarh Bench has in the order relied upon in the case of Alpha Cable Network (Supra) held that extended period could not have been invoked. As facts of the present case are exactly identical to the case of Alpha Cable Network(Supra) or that decided by the Chandigarh Bench, I do not find any merits in the impugned order to the effect it upheld the demand for extended period of limitation. The demand should be restricted to normal period of limitation. Thus the matter needs to be remanded to the Original Authority for determination of the quantum of taxes for normal period. 4.5 As observed by in the impugned order Appellant is claiming Cenvat credit in respect of documents which are much older than period prescribed for availing the credit as per Rule 4 (7) of the CENVAT Credit Rules, 2004. I do not find that this issue was considered by the Commissioner (Appeals) in case of Alpha Cable Network(Supra) or the Chandigarh Bench in case of Blue Star. Rule 4 (7) of CENVAT Credit Rules is reproduced below: (7) The CENVAT credit in respect of input service shall be allowed, on or after the day on which the invoice, bi....
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....f Central Excise Act does not empower the Revenue to make such rule, as the Clause XVI (a) of Sub-Section 2 of Section 37, only enable the Government to make rules which provides for credit of duty paid on the goods in or in relation to the Excise Rules. 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 them. If a manufacturer wants to avail the benefit of Modvat credit in respect of inputs used in or in relation to the manufacture of final product on payment of duty on such final products under Rule 57A of the Central Excise Rules, he should follow the procedure laid down under the Modvat Scheme. The contention of the appellants is that if on the inputs the manufacturer had already paid the duty on the basis that when the goods are ....
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.... rule, by that the right to credit itself was taken away, whereas in the instant case by the introduction of the second proviso to Rule 57G, the credit in the account of a manufacturer was not taken away but only the manner and the time within which the said credit was to be taken or utilized alone was stipulated. It is to be noted at this juncture that the substantive right has not been taken away by the introduction of the proviso to the rule in question but a procedural restriction was introduced which, in our opinion, is permissible in law. Therefore, in our opinion, the law laid down by this Court in Eicher's case (supra) does not apply to the facts of these cases. This is also the position with regard to the judgment of this Court in Collector of Central Excise, Pune & Ors. v. Dai Ichi Karkaria Ltd. & Ors. [1999 (7) SCC 448]. 8. It is vehemently argued on behalf of the appellants that in effect by introduction of this rule, a manufacturer in whose account certain credit existed, would be denied of the right to take such credit consequently, as in the case of Eicher (supra), a manufacturer's vested right is taken away, therefore, the rule in question should be interpr....