TaxTMI 
TaxTMI 
2025 (11) TMI 127
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....n 75 of the Finance Act, 1994. (iii) I impose penalty of Rs.11,18,288/- (Rupees Eleven Lacs eighteen Thousand Two Hundred eighty eight Only) upon the party, under Section 78 of the Finance Act, 1994. (iv) I impose penalty of Rs.10,000/- [Rupees Ten Thousand] upon the party under Section 77(2) of the Finance Act, 1994." 2.1 On the basis of specific intelligence that appellant was providing Cable Operator Services taxable under Finance Act, 1994 without paying service tax, inquiry was initiated against them. 2.2 Inquiry and investigations made, revealed that appellant during the period from 2012-13 to 2016-17 did not pay service tax including cess of Rs.11,18,288/-. They were providing taxable branded services covered under the definition of Cable Operator Service and the benefit of threshold exemption under Notification No.33/2012-ST dated 20.06.2012 was not available to them. 2.3 Show cause notice dated 18.10.2017 was issued to the appellant asking them to show cause as to why- "(i) the Service Tax (including education cess and SHE cess swacahh bharat cess & krishi kalian cess), as discussed hereinabove amounting to Rs.11,18,288/- (Rupees Eleven ....
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....ation) Act, 1995 (7 of 1995), Further, as per Section 2(aa) of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995) (here-in-after referred to as 'CTN Act'), "cable operator means any person who provides cable service through a cable television network or otherwise controls or is responsible for the management and opcration of a cable television network and fulfills the prescribed eligibility criteria and conditions. Also, Section 2(b) of the CTN Act, "cable service" means the transmission by cables of programmes including re-transmission by cables of any broadcast television signals. Further, "the cable television network is defined as per Section 2(c) of the CTN Act to mean any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers. "Subscriber" is defined as per Section 2(i) of the CTN Act to mean any individual or association of individuals or a company or any other organization or body who receives the signals of cable television network at a place indicated by him or it to the Cable Operator without further transmit....
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....th the broadcasters who provide the integrated receiver decoder boxes (IRD) to receive the signals in the encrypted form. These boxes were installed by the MSO. The MSO then transmits the signals either through the LCO or directly to the subscribers. When the MSO provides the service through the local cable operator who would then re-transmit the broadcast television signals by the cable to the last mile subscriber, then such a LCO is the cable operator. The definition of the cable operator as per Section 2(aa) of the CTN Act states that a "cable operator" means any person who provides cable service through a Cable Television Network or otherwise controls or is responsible for management and operation of Cable Television Network and fulfills the prescribed eligibility criteria and conditions. The "Cable Television Network as per section 2(c) of the CTN on other hand means any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment designed to provide cable service for reception by multiple subscribers. Hence there are two main ingredients in the definition of the Cable Television Network, one is cable service and ....
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....r", 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. Thus, it is evident that the appellant has misconstrued the said judgment of the Hon'ble High Court of Punjab & Hariyana. Relevant portion of the judgment is as under: "7. In the reply filed on behalf of the Commissioner Central Excise Service Tax, it is submitted that since w.e.f 10-92004, "taxable service" has been re defined to mean service provided to "any person", it was not necessary that the cable operator must be providing services to "any customer". Definition of "cable service" under Section 65(22) is as per definition under Section 2(b) of the Cable Television Networks (Regulation) Act, 1995 which is: "cable service' means transmission by cables of programmes including re-transmission by cable of any broadcast Television signals." 7.1 Thus, the said definition also includes services provided by "Multi System Operator". It is further pointed out th....
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....s in the preceding financial year. Since in the instant case the appellant has received Rs. 11,59,302/- Rs. 11,78,256/- &Rs. 11,28,132/- during the FY 2014-15, 2015-16 & F.Y 2016-17 respectively, therefore, the appellant is not entitled to threshold exemption of Rs. 10 lakh in the F.Y. 2015-16, 2016-17 2017-18 in terms of Notification No. 33/2012-ST, dated 20.06.2012 as amended. The appellant has not produced any evidence that taxable value received during the F.Y 2012-13 was less than Ten Lakh, therefore, threshold exemption of Rs. 10 lakh in the F.Y. 2013-14 could not be extended to the appellant in terms of Notification No. 33/2012-ST, dated 20.06.2012 as amended. However, the appellant is eligible for threshold exemption of Ten Lakh during the FY 2014-15 since taxable value received during the F.Y 2013-14 was Rs. 9,22,482/-. 4.7 As regard the issue of admissibility of Cenvat credit of the service tax paid by the MSO ie M/s DEN, I find that the matter has been decided by the CESTAT, Chandigarh in its Final Order No- A/60167-60171/2019 dated 22.2.2019 in the case of M/s Blue Star Communication & others Vs CCE, Ludhiana by observing that "We find that the out of total amo....
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....f Uttar Pradesh, notified, the rate of Entertainment Tax for cable service & direct to home service as 25% out of each aggregate payment, vide Sl. No. 5 of this Notification, the amounts received by the appellants from their customers for providing the cable operator service, were, therefore, worked out backwards on the basis of Entertainment Tax paid by the appellant 4.8.1 It is further observed that Section 2(a) & the Explanation 2 under Section 3 of the U.P. Entertainments and Betting Tax Act, 1979, defined the expressions "admission to an entertainment" & "aggregate payment" respectively, as under: Section 2(a): "admission to an entertainment" includes admission to any place in which the entertainment is held or any other place from entertainment is provided by any means of the cable television network or Direct to Home service or any other emerging transmission by whatever name called. Explanation 2 under Section 3- For the purposes of this Act, the expression aggregate payment shall mean a sum paid by a person for admission to the entertainment which shall include entertainment tax and any other amount required to be paid under this Act but does not....
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....count 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. 4.9 Regarding the submission of the appellant for extending the benefit of cum-tax value, it is observed that it is not the case of the Department that the appellant has charged & collected Service Tax, from their customers, on the amount worked out on the basis of Entertainment Tax, without depositing such Service Tax in the Government account. Thus, I find that in this case, the appellant is entitled for the benefit of cum-tax value as per Section 67(2) of the Act 4.10 In view of the above discussion & findings, I hereby determine the service tax liability after excluding the entertainment tax from the taxable value and allowing the cum-tax benefit, as under: Period Value excluding entertainment Taxable value after allowing cum tax value Rate of S Tax Service Tax payable 2012-13 tax 427752 380698 12.36% 47054 2013-14 1348506 1200166 12.36% 148340 2014-15 1378776 1227106 12.36% 151670 Apr'15 to May'15 24....
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....Representative appearing for revenue, Tribunal have upheld the denial of credit taken beyond the period prescribed by Central Excise Rules, 1944. Larger bench 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 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 utilised in the manufacture of final product then tax on these goods are ....
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....enge 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 credit after coming into force of the rule. Agreeing with the Tribunal, the Apex Court has observed as follows :- "Therefore, in our opinion, the Tribunal was justified in holding that the rule in question only restricts a right of manufacturer to take the credit beyond the stipulated period of six months under the rule." 9. The ratio of the above judgment is that the said sub-rule is in the nature of period of limitation restricting the right of manufacturer to take the credit within th....
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.... 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 under the Income-tax Act, the Apex Court while construing the relevant provision of the Act has held that the proper way to deal with such a provision is to give it an interpretation which, to use the words of the Privy Council in Mahaliram Ramjidas's case, AIR 1940 PC 124, "makes the machinery workable, ut res valeat potius quam pereat." 18. Reference was made by the learned counsel for the applicant to the case of Commissioner of C.EX., Jaipur v. Parasrampuria Synthetics Ltd., 2000 (116) E.L.T. ....