9911796707
TMI Blog2011 (6) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... involving interpretation of law. The appellant gets full relief of penalty under Section 78 of the Act. - ST/16/2007 - ST/274/2011(PB) - Dated:- 1-6-2011 - S/Shri D.N. Panda, Sahab Singh, JJ. REPRESENTED BY : Shri R. Krishnan, Advocate, for the Appellant. Shri B.L. Soni, DR, for the Respondent. [Order per : D.N. Panda, Member (J)]. Following two issues are involved in this appeal :- (i) Whether balance sheet figures shall ipso facto be measure of value for levy of tax of Rs. 23,44,400/- in the case of cable operator service provided for the period 10-9-2004 to 31st July, 2005? So also whether other consequences of law shall follow? (ii) 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 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? So also whether levy of service tax of Rs. 25,66,805/- was justified with other consequences of law to follow? 2. Learned Counsel Shri Krishnan appearing on behalf of the appellant submits that in so far as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l intention to evade payment of service tax came to record. Therefore, imposition of penalty under Sections 78 and 76 was unwarranted. Service tax registration was also forthwith taken and compliance with law was made without any suppression. 5. Liability as aforesaid was worked out by appellant from the books of account maintained by the assessee which was the basis for Revenue to make a case against it. Even in paragraph 30 of the order, nowhere it raises questionable conduct of the appellant for levy of penalty. He also submits that when balance sheets were filed before various authorities the appellant has made proper disclosure of the facts and figures while determination of liability under law required interpretation thereof to precisely workout tax payable. Therefore, the appellant deserve to be exonerated from penal consequences of law because after impost of levy w.e.f. 10-9-2004 this is the first adjudication against appellant. 5. In so far as the second issue is concerned Shri Krishnan explains that service tax of Rs. 25,66,805/- was levied bringing the appellant to the purview of Section 65(105)(zk) of the Act under the category of Broadcasting service provider by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... past and receivables of future, the department was kept in dark. As a result of which figures gathered in the course of investigation remained uncontroverted and that became the basis of adjudication. Therefore, the appellant cannot deny its liability determined in adjudication as cable operator since it s balance sheet disclosed higher figure for imposing tax. 10. So far as second issue is concerned contention of Revenue is that Broadcasting service as is recognised by Prasar Bharti Law brought transmission either through space or through cable to the tax ambit. Cable operators providing transmission service came under broadcasting service being a specific category service according to the rules of classification. The appellant thus cannot deny its liability under Section 65(105)(zk) in respect of such service. So far as exemption notification benefit is concerned, department s contention is that such claim was considered in para 26 of adjudication order. But the appellant failed to succeed. Accordingly, appropriate order was passed by the authorities below. 11. Heard both sides and perused the record. 12.1 So far as first issue is concerned there being an admitted liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have already indicated that the authority shall provide opportunity to the appellant to reconcile the figures claimed by it and figures appearing in the balance sheet shall be compared with the figures extracted from computer. Since no mala fide is apparent at present on reading of para 30 of the order, the appellant deserves to be exonerated from penal consequences of law under Section 78 of the Finance Act, 1994 in respect of first issue unless during reconciliation otherwise found. 12.5 So far as penalty of Rs. 100/- per day imposed under Section 76 is concerned for the delay in payment of service tax as has been depicted hereinbefore, such a delay needs to be redressed by imposition of penalty under Section 76 of the Act and we confirm adjudication order in respect of such penalty. 12.6 So far as interest under Section 75 is concerned since there is tax liability, such interest become payable upon determination of actual liability. Thus tax demand is confirmed subject to reconciliation with concession in penalty to the above extent. If the authority finds that computer figures and book figure differs, and the authority is not satisfied about reasons of discrepancy, if an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g noticed the features relating no elements of penal consequence in the impugned order, view taken in this regard in respect of issue No. 1 equally applies to the penal consequences under Section 78 of the Finance Act, 1994, in respect of second issue. 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 for the impugned period and the impugned order to that extent is set aside. 16. We confirm our view for levy of penalty under Section 76 of the Act as has been stated hereinbefore in respect of first issue and that shall be payable by the appellant. 17. So far as interest liability in respect of second issue is concerned, the appellant shall also be liable to interest under Section 75 of the Act on the ultimate liability that shall be determined relating to no exemption period as aforesaid. 18. In the result, appeal is partly allowed to the extent indicated above in respect of each issue and original authority has to re-determine liability for the reasons aforesaid. (Dictated pronounced in the Open Court) - - TaxTMI - TMITax - Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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