TaxTMI 
TaxTMI 
2025 (8) TMI 799
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....gwith Interest under Section 75 of the Finance Act, 1994. Remaining demand of service tax of Rs. 6,58,368/-is hereby dropped. (ii) I impose penalty of Rs.12,70,048/-under Section 78 of the Finance Act, 1994 upon M/s. Ultra World Vision, 336 A, Sheetla Bazar, Jajmau, Kanpur (Proprietor Shri Munna). (iii) I impose penalty of Rs. 10,000/- each under Section 77(1)(a), 77(1)(b), 77(1)(c), & 77(2) of the Finance Act, 1994 upon M/s. Ultra World Vision, 336 A, Sheetla Bazar, Jajmau, Kanpur (Proprietor Shri Munna)." 2.1 On the basis of specific intelligence that appellant was providing Cable Operator Services taxable under Finance Act, 1994 without obtaining service tax registration and without paying service tax. Inquiry was initiated against them. 2.2 Inquiry and investigations made, revealed that appellant during the period from 2013-14 to 2017-18 (upto June, 2017) did not pay service tax including cess of Rs.19,28,416/-. They were providing taxable services of re-transmission of broadcast television signals received from their multi-system operator (MSO) i.e. M/s DEN Ambey Cable Network Pvt. Ltd., Kanpur (M/s DEN) and the benefit of threshold exemption unde....
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....tive appearing for the revenue. 3.2 In the appeal records filed by the appellant submits that- • Impugned order extends the benefit of threshold exemption and cum tax benefit and re-quantified the demand in view of the decision of Chandigarh Bench of Tribunal in the case of M/s Blue Star Communication Final Order No.A/60167-60171/2019 dated 22.02.2019 and M/s Antares Services Pvt. Ltd. which are on the same line. • However they are in appeal only for allowing the Cenvat credit of input services beyond the period of six months/01 year under proviso of Rule 4(7) of Cenvat Credit Rules, 2004. • They also claim that demand should be restricted to normal period of limitation as has been done in the cases relied in the impugned order. 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 &....
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....ded to any person by a cable operator including MSO in relation to cable service. So the services provided by both cable operator and MSO continued to be taxable within the scope of definition 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 September, 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.Bl1 6 12005-TRU dated 27th July 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....
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....ther organization or body who receives the signals of cable television network at a place Indicated by him from MSO or the cable operator, without further transmitting it to any other person. In view of these 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 va 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 co....
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....n of "service" as "service to any person by a cable operator including "a Multi System Operator", contention raised on behalf of the petitioners that Multi System Operator was not liable to pay service tax, unless 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. 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 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 i....
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....iding taxable scrvice during relevant financial 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 maintain....
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....n assessed correctly or not? d) Whether the appellants are liable to pay service tax on the gross value of the services provided by them or not? e) Whether the appellants are entitled for cenvat credit of service tax paid by the MSO or not? 12. Whether the appellants are providing branded service or not? Consequently they are entitled for exemption under Notification No. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012. In this case, the appellants are cable operator and providing cable services to the subscribers on the basis of signals received from the MSO. 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 MSO is supplying signal to the appellants which has been transmitted to the subscribers, in that circumstances, there is no relation of brand name to the ultimate customers. Therefore, we hold that the appellants are not providing any branded service 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 occ....
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...., the Hon'ble Apex Court observed the criteria for use of brand name which is as follows:- "1) It must be a name or mark such as symbol, monogram, label, signature or invented word or writing; (2) It must be used in relation to such specified goods, for the purpose of indicating a connection in the course of trade between such goods and some person using such name or mark, with or without any indication of the identity of that person; and (3) The mere fact that the specified goods manufactured by a person bear a brand name or trade name of another manufacturer, is not sufficient to conclude that those goods are manufactured by such other manufacturer or trader. 19. Therefore, it is clear that a person may be taken to be manufacturing specified goods, bearing a brand name or trade name only if the name, mark or symbol used as such, is intended to indicate a connection in the course of trade between such specified goods and some person using such mark or name. If the use of the brand name or trade name is not intended for the purpose of indicating a connection in the course of trade between such specified goods and the person using such name or mar....
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....there is a possibility of bona fide belief for non-tax liability. Considering the ratio followed by the Tribunal in the abovementioned cases and also considering the facts of the present case, I find that it is a fit case for invoking the provision of Section 80 for waiver of penalties imposed on the appellant. Accordingly, the penalties are set aside and the appeal is allowed only to that extent." Therefore, no penalty is imposable on the appellants. c) Whether the best judgement under Section 72 of the Finance Act, 1994 has been assessed correctly or not? In this case, it is a fact on record, the appellants were not given time of supply the data of their activity and assessment has been done on the basis of the data supplied by the MSO which is not correct, therefore, we hold that the assessment under Section 72 of the Finance Act, 1994 is not correct. In that circumstances, the impugned demand is not sustainable, but the appellants are directed to provide the data for their activity within the period of limitation to the adjudicating authority within 30 days of the communication of this order and on the basis of the data supplied by the appellants, the correct ....
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....ut services for the appellants. Therefore, the service tax paid by the MSO is available as cenvat credit to the appellants. In these circumstances, we hold that the appellants are entitled to avail cenvat credit of the service tax paid by the MSO. 13. In view of the above, the following order is passed:- a) the appellants are entitled for exemption under Notification No. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012. b) the extended period of limitation is not invokable. Consequently, no penalty is imposable on the appellants. c) the appellants are liable to pay service tax on the gross value of services received by them and is entitled to avail cenvat credit of service tax paid on the amount remitted to the MSO. d) The adjudicating authority shall quantify the demand for the period within the period of limitation on production of data of services provided by the appellants of cable services to the subscribers within the 30 days of receipt of this order on which the appellant shall paid the service tax if payable. 12. In view of the above, the appeals are disposed of." 4.4 I find that th....
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....ise the credit of the duty paid on the inputs used in or in relation to the manufacture of final product for payment of duty on such final product; but he has to take credit on such inputs within six months from the date of issue of the duty paying documents. After the amendment credit cannot be taken on duty paying documents which are more than 6 months old. 13. In view of the above discussions, we answer the question referred to Larger Bench in the favour of Revenue. Therefore, the view taken in case of Osram Surya Pvt. Ltd. v. Commissioner of Central Excise, Indore, reported in 1998 (29) RLT 684 is the correct view and the contrary view taken in correct. 14. No other issue is involved in the appeals. Therefore, the appeals are being taken up for disposal. The appellants availed the benefit of Modvat credit on documents after six months from the date of their issue. After amendment to Rule 57G of Central Excise Act, the appellants are not entitled to such credit. The appeals are accordingly dismissed." 4.6 I also note that the view taken by the Tribunal have approved by Hon'ble Supreme Court in the case of Osram Surya Pvt. Ltd. [2002 (142) ELT 5 (SC)].&....
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....ing the principle of limitation, to test the argument of the applicants. 11. The law of limitation is based on delay and laches. It does not bar the right but the remedy. One of the most important and universal rules (which is not, however, without exception in English law) is that time, when it has once commenced to run in any case will not cease to do so by reason of any subsequent event which may be within the saving of the statute. Of this there is a well-known instance drawn from the time of the English civil wars. In answer to a plea of the statute, the plaintiff replied that a civil war had broken out, and the Government was usurped by certain traitors and rebels, which hindered the course of justice, and by which the courts were shut upon and that within six years after the war ended he commenced his action and yet his replication was held to be bad. 12. The law of limitation is not one of substance but of procedure. The object of prescribing limitation is to put an end to itigation, or to state it in other words, litigation may attain a finality. 13. The other principle of interpretation while dealing with the provisions of a fiscal statute is th....