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TMI Blog2011 (4) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice provided to M/s Convergys and M/s Dakshe Services who were not registered as telegraph authority as noted in the order granting stay against the impugned order. Period of limitaion - Held that:- Since the demand is raised by using a labored interpretation, the obvious conclusion is that non-payment of tax (if due) was due to an issue of interpretation beyond the grasp of an ordinary tax-payer and not resulting from suppression or misstatement or any act with intent to evade duty. - ST/660 of 2007 - - - Dated:- 21-4-2011 - Hon ble Mr. Ashok Jindal, Member (Judicial) Hon ble Mr. Mathew John, Member (Technical) Appearance: Appeared for Appellant : Shri B.L. Narasimhan, Advocate Appeared for Respondent : Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Ltd., and M/s Data Access India Ltd., are also registered as telegraph authority under the Indian Telegraph Act, 1885. Therefore, service provided by one telegraph authority to another telegraph authority is not liable to service tax as service is not provided to a subscriber. The Appellant relies upon the decision of the Tribunal in the case of Fascel Ltd. Vs. CST, Ahmedabad reported in 2007 (7) STR 29 (Tri.-Ahmd.) wherein the Tribunal after relying upon the decision of the Karnataka High Court in the case of PCO Vs. Telecom Authority held that no telegraph authority can be treated as subscriber of another telegraph authority in relation to the link established between one telegraph authority and another telegraph authority. 4. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The reasons canvassed are the following: (i) The link provided by them is not a dedicated link because the same cable was used by different clients by sharing the bandwidth. Thus the link is not dedicated to any user as envisaged in the definition. (ii) The Appellant is not providing a link between two fixed locations in as much as the services are terminated at different places as desired by their customers and not at the beginning and end of a leased line. (iii) The service provided is not for the exclusive use of any one subscriber. 7. The Appellant further submits that the demand is time barred in as much as there was no suppression of facts in the matter and the dispute involves interpretation of legal provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced above. The first part (in ordinary print) is hereinafter called means- part and the second part (in bold print) is hereinafter called the includes-part. It is argued that while considering the includes-part all the contents of means-part should be just ignored. Thereafter it is argued that what the Appellant provides is a data circuit specified in includes-part and therefore whether or not the circuit was dedicated, or link provided between two fixed locations or for exclusive use, it will still fall under the definition of leased circuit. To come to this conclusion the Revenue relies on the decision of the Apex Court in the case of Black Diamond Beverages and Another Vs. Commercial Tax Officer- 1988 (1) SCC 458. In this case the ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pretation by any authority is produced we disagree with this interpretation canvassed at least in the matter of the definition of leased circuit under discussion. Once this issue is ruled against the Revenue the entire demand fails. Still it is worthwhile to examine the other issues also. 13. We also follow the decision of the Tribunal in the case of Fascel Limited vs. Commissioner of Service Tax Ahenedabad-2007-TIOL-208-CESTAT-AHM and the decision in Reliance Telecom Ltd. Vs. CST Ahmedabad -2007-TIOL-414-CESTAT-AHM to the effect that a telegraph authority receiving interconnecting service cannot be considered as a subscriber. Once this position is adopted even without the ruling at para 12 above, the demand will fail except for about R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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