2015 (9) TMI 735 - AT - Service Tax

Short payment of service tax - MSO / Cable operator services - under-reporting of number of subscribers - Held that - the revenue has not produced any contrary evidence to indicate that appellant had larger subscriber base than as is declared in ST3 returns. The query from the bench as to any additional evidence being not noticed by the adjudicating authority, departmental representative was unable to show us any additional evidence gathered by the revenue. In the absence of any additional evidence that there being larger subscriber base, we find that the difference of service tax liability for the period January 2006 to September 2009 has been worked out based upon presumptions and assumptions. The subscriber base as calculated by the revenue for this period is a notional one, theoretical without any basis. - adjudicating authority was correct in dropping the proceedings initiated by the show cause notices for the period January 2006 to September 2009 - however demand for the period October 2005 to December 2005 confirmed - Decided substantially in favor of assessee.

Summary

Issues:
1. Whether the respondent under-reported the number of subscribers and short-paid service tax liability.
2. Interpretation of agreements between the respondent and Star India for service tax liability calculation.
3. Application of legal provisions for best judgment assessment of service tax liability.
4. Discrepancy in subscriber base calculation and evidence presented by the revenue.
5. Confirmation of service tax demands for specific periods and interest liability.
6. Penalty imposition on the respondent.

Analysis:
1. The appeal by the revenue challenges an Order-in-Original regarding under-reporting of subscribers and short payment of service tax liability by the respondent, a multi-system operator. The adjudicating authority dropped proceedings based on agreements with Star India. The revenue argued that the respondent did not pay service tax on the entire subscriber base, leading to underreporting. The Tribunal considered previous judgments and submissions from both sides.

2. The key issue was the interpretation of agreements between the respondent and Star India for service tax liability calculation. The revenue claimed that subsequent agreements did not specify subscriber numbers, leading to incorrect tax discharge. The respondent argued that subscriber base determination was theoretical and based on assumptions. The Tribunal analyzed the agreements and relevant legal provisions to reach a decision.

3. The Tribunal applied legal provisions for best judgment assessment of service tax liability, considering the material gathered during the investigation. It discussed the Finance Act's sections related to assessment and liability determination. The decision was based on evidence and agreements between the parties.

4. There was a discrepancy in subscriber base calculation and evidence presented by the revenue. The respondent's agreements with Star India were crucial in determining the service tax liability. The Tribunal highlighted the importance of actual subscriber numbers and the lack of contrary evidence from the revenue to support claims of underreporting.

5. The Tribunal confirmed service tax demands for specific periods based on agreements indicating subscriber numbers. Interest liability was also addressed. The judgment differentiated between demands for different time frames and upheld the adjudicating authority's decision for certain periods.

6. Finally, the Tribunal decided not to impose a penalty on the respondent due to the upheld portions of the adjudicating authority's order and potential confusion. The appeal was disposed of accordingly, considering the findings on service tax liability and subscriber base calculations.