2011 (6) TMI 471 - AT - Service Tax

Whether balance sheet figures shall ipso facto be measure of value for levy of service tax - cable operator service - Whether the service provided to T.V. viewers through cable network shall be called Broadcasting service and appellant is entitled to benefit of Notification No. 8/2001-S.T., dated 9th April, 2001 - held that - When it is held that the appellant was broadcasting service provider and it has incurred tax liability as such service provider, it is entitled to the exemption benefit for the period from 16-7-2001 to 9-7-2004 under Notification No. 8/2001-S.T., dated 9th July, 2001. But it has incurred liability w.e.f. 9-7-2004 till 31-7-2005 under the taxing entry enacted under Section 65(105)(zk) of the Act when the exemption notification was rescinded. The appellant accordingly gets partial relief in respect arise of tax liability under issue No. 2, which shall be recomputed by Adjudicating Authority. Relief from penalty - held that - It deserves lenient consideration since classification dispute was persisting and that was involving interpretation of law. The appellant gets full relief of penalty under Section 78 of the Act.

Summary

Issues Involved:
1. Whether balance sheet figures shall ipso facto be the measure of value for the levy of tax for the cable operator service provided for the period 10-9-2004 to 31st July, 2005, and whether other consequences of law shall follow.
2. Whether the service provided to TV viewers through cable network shall be called Broadcasting service, and whether the appellant is entitled to benefit from Notification No. 8/2001-S.T., dated 9th April, 2001, for the period 16-7-2001 to 9-7-2004, and whether such service shall be taxable from 10-7-2004 to 31st July, 2005, and whether the levy of service tax was justified with other consequences of law to follow.

Detailed Analysis:

Issue 1: Tax Liability Based on Balance Sheet Figures for Cable Operator Service

The appellant contended that the service tax demand of Rs. 23,44,400/- was levied under Section 65(105)(zs) of the Finance Act, 1994, for the period 10-9-2004 to 31st July, 2005. The appellant argued that the liability was calculated excluding past and future considerations from the gross receipts, resulting in a tax liability of Rs. 20,49,897/-, of which Rs. 15.50 lakhs was paid through four challans and Rs. 4,63,000/- was adjusted from the Cenvat account. The adjudicating authority ignored the reconciliation statement provided by the appellant but appropriated the amount paid.

The Tribunal noted that the appellant admitted liability and discharged it through various challans. The taxing entry under Section 65(105)(zs) brought "Multi-system operator" to the category of cable operation service. The Tribunal emphasized the need to reconcile the figures in the balance sheet with the books of account to avoid double taxation and ensure that only the receipts of the taxable period are taxed. The Tribunal directed the appellant to cooperate with the department for this reconciliation.

Regarding the penalty under Section 78, the Tribunal found no evidence of mala fide intent or intention to evade tax by the appellant. Therefore, the appellant was exonerated from penal consequences under Section 78 unless discrepancies were found during reconciliation. However, the penalty under Section 76 for delay in payment of service tax was confirmed, and interest under Section 75 was deemed payable upon determination of actual liability.

Issue 2: Classification and Taxability of Service Provided to TV Viewers Through Cable Network

The appellant argued that the service provided did not fall under "Broadcasting service" as defined by Section 65(15) and (16) of the Act, which adopts the meaning from Prasar Bharti Law. The appellant claimed that it was merely transmitting viewables through cable, not through space via electro-magnetic waves, and thus should not be classified under Section 65(105)(zk).

The Tribunal examined the meaning of "broadcasting" under Section 65(15) and found that dissemination of communication through cable to the general public qualifies as broadcasting. Therefore, the appellant's service fell under "broadcasting service" and was taxable under Section 65(105)(zk). However, the appellant was entitled to exemption under Notification No. 8/2001-S.T. for the period 16-7-2001 to 9-7-2004, as this notification was rescinded on 9-7-2004. The appellant incurred liability from 9-7-2004 to 31-7-2005.

Regarding penalties, the Tribunal applied the same leniency as in Issue 1, exonerating the appellant from penalties under Section 78 due to the classification dispute and the need for interpretation of law. The penalty under Section 76 was confirmed, and interest under Section 75 was deemed payable on the ultimate liability for the non-exemption period.

Conclusion:

The appeal was partly allowed. The original authority was directed to re-determine the liability for both issues, considering the reconciliation of figures and the partial exemption period for broadcasting service. The appellant was exonerated from penalties under Section 78 but was liable for penalties under Section 76 and interest under Section 75.