2018 (9) TMI 318 - AT - Service Tax

Classification of services - advertising agency service - multi system operator services (MSO) - whether the said services would be taxable under the head Cable Operator service or not? - extended period of limitation - Held that - The definition under section 65 (20) has been amended with effect from 10.9.2004, wherein multi system operator were also been included in the scope of cable operator service - Service tax is leviable on the multi system operator providers since 10.9.04 and as the appellants have been providing multi system operator services, they are very much covered under Section 65(20) of the Finance Act, 1994 under the cable operator service - demand upheld. Extended period of limitation - Whether the extended time proviso, circumstances in which the appellant operated is invokable or not? - Held that - The Since the assessee was very much paying service tax as well as filing the Service tax returns for the other services , they cannot claim that they were not aware about the changes that came into effect from 10.9.2004 - longer period of limitation is available to the Revenue. Appeal dismissed - decided against appellant.

Summary

Issues:
Service tax liability on multi system operator services, applicability of extended time proviso under section 73(1) of the Finance Act, 1994, and imposability of penalty under section 78.

Analysis:

1. Service Tax Liability on Multi System Operator Services:
The case involved a dispute regarding the service tax liability of the appellants providing multi system operator services since 10.9.2004. The department contended that these services fell under the category of 'cable services' as per the Finance Act 1994, thereby necessitating the payment of service tax. The appellants argued that they believed their services were not covered under the scope of cable operator services based on a 2002 CBEC clarification. However, the tribunal held that the appellants were well aware of the changes in the law, specifically the amendment to the definition of cable services in 2004. As the appellants were registered service providers and were filing service tax returns for other services, it was deemed that they should have been aware of their service tax liability for multi system operator services since 10.9.2004. Consequently, the confirmation of short payment of service tax by the lower authorities was upheld as per the law.

2. Applicability of Extended Time Proviso under Section 73(1) of the Finance Act, 1994:
The appellants argued that the extended time proviso under section 73(1) should not be invoked as they were not intentionally evading service tax payment, relying on the 2002 CBEC circular. However, the tribunal found that the appellants, being old assessees of service tax, were aware of the legal developments and changes in the provisions. The tribunal noted that the partner of the appellant firm had acknowledged their awareness of service tax liability on multi system operator services based on invoices from broadcasters. The tribunal concluded that the appellants' claim of confusion due to the circular was unfounded, and the longer period of limitation was applicable to the revenue based on the facts of the case.

3. Imposability of Penalty under Section 78:
The tribunal considered the contention of the appellants that penalty under section 78 should not be imposed. The appellants cited various decisions of the Hon'ble Supreme Court and the tribunal to support their argument. However, the tribunal, after evaluating the facts of the case, held that the penalty under section 78 was imposable. The tribunal emphasized that the appellants were aware of their service tax liability and chose not to pay, leading to the confirmation of the penalty.

In conclusion, the tribunal upheld the impugned Order-in-Appeal, dismissing the appeal and confirming the service tax liability on multi system operator services since 10.9.2004, the applicability of the extended time proviso, and the imposability of penalty under section 78.