2019 (3) TMI 1390 - AT - Service Tax

Short payment of service tax - Cable Operators Service - period 16.08.2002 to 31.12.2004 - Held that - It is seen that appellant had taken registration and thereafter not paid service tax except for the amount of ₹ 2,380/-. The department has quantified the demand basing upon the estimation given by the M/s. SCV, who were providing link/signals to the appellants. There is no document to support such quantification of demand. The appellant also failed to maintain proper accounts - there is no ground to interfere with the demand confirmed or interest thereon. Penalty - Held that - aking note that there was a Board Circular dt.1.8.2002 which clarified that when MSO receives signals they first transmit signals to the cable operator who in turn retransmits the same to the viewers through the cable network and the liability is on cable operator providing service to the ultimate subscriber, we accept the plea of appellant that they failed to discharge service tax placing reliance on such Circular. Being interpretational and bonafide doubt, and due to the peculiar facts of the case, we hold that this is a fit case to invoke Section 80 of the Finance Act, 1994 - penalty u/s 77 and 78 set aside. Appeal allowed in part.

Summary

Issues:
Demand raised under Cable Operator Services - Interpretation of taxable services provided - Applicability of service tax on services provided to sub-operators - Proper quantification of demand - Maintenance of accounts and filing of returns - Validity of show-cause notice invoking extended period - Imposition of penalties under Section 77 and 78 of the Finance Act, 1994.

Analysis:
The case involved a dispute regarding the demand raised under Cable Operator Services for the period between 16.08.2002 to 31.12.2004, along with interest and penalties. The appellants argued that the services they provided did not fall within the definition of Cable Operators Service as clarified by a Board Circular dated 01.08.2002. They contended that liability for service tax arises only when services are provided to the ultimate customer, not to sub-operators. The department quantified the demand based on estimations without proper documentary evidence. The appellants had also failed to maintain proper accounts, leading to a lack of clarity in the case. The Tribunal acknowledged the confusion faced by the appellants and invoked Section 80 of the Finance Act, 1994, considering the interpretational and bonafide doubt due to the peculiar facts of the case. Consequently, the penalties imposed under Sections 77 and 78 were set aside, while the demand and interest were upheld.

The appellants' argument relied on the distinction between providing services directly to customers versus through sub-operators. They highlighted that the liability for service tax falls on the entity providing services to the ultimate subscriber, as per the Board Circular. The department's case was supported by evidence from enquiries conducted with the link provider, M/s. SCV, indicating that the appellants served both direct customers and customers through sub-operators. The department justified the demand and penalties by pointing out the appellants' failure to maintain accounts, file returns, and pay the due service tax after initial registration. The show-cause notice invoking the extended period was deemed legal and proper by the department.

The Tribunal carefully considered the arguments from both sides and the relevant legal provisions. While upholding the demand and interest, the Tribunal found merit in the appellants' plea regarding the confusion arising from the Board Circular. Recognizing the peculiar circumstances and the appellants' bonafide doubt, Section 80 of the Finance Act, 1994 was invoked to set aside the penalties imposed under Sections 77 and 78. The decision aimed to balance the legal obligations with the genuine interpretational challenges faced by the appellants, ultimately partially allowing the appeal by modifying the impugned order to exclude penalties but maintain the demand and interest.