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TMI Blog2015 (8) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... tertaining the appeal of the appellant when the order passed by the original authority/2nd respondent had not discharged the onus cast on her to establish that the appellant had actually rendered the taxable broadcasting service during the material period for the sole reason of which alone the order passed by her is not sustainable in law having no legs to stand on its own, more particularly when the appellant had shown before the 1st respondent/tribunal that the two television companies involved in the dispute are owned by separate corporate entities with whom the appellant had entered into contracts/agreements for providing only the up-linking services for them? 2. Whether the tribunal was right in relying upon the permission letter date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d notice issued to them was hopelessly barred by limitation as the service of the notice was contrary to the provisions contained in Section 37 of the Central Excise Act, mandating the service by invoking resorting to Section 37(1)(a) or 37(1)(b) before invoking 37(1)(c) of the Act and that too by resorting to affixing of the notice outside their office premises on the last that too being a holiday viz., Sunday?" 2. The brief facts of the case are as follows: The appellant company, in the month of September, 2002 obtained registration from service tax department for payment of tax under the category "Broadcasting Service". Thereafter, by letter dated 29.10.2004, the assessee approached the Deputy Commissioner of Service Tax and sought for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey pleaded that the demand of service tax by the Department is not justified because they are under misconception that up-linking services is equivalent to broadcasting services. 5. The Tribunal taking note of the submissions made by the assessee has come to the conclusion as follows: "4. ....... It is noted that P&L Account for the year ending 31.3.2005 showed fees for allotment of airtime and up-linking charges separately. Thus it is clear that applicant had been collecting fees for allotment of air time. So, prima facie, we are unable to accept the contention of learned advocate that they were not rendering any service of broadcasting. It is seen from the impugned order that in the P&L Account for the year ended 31.3.2006 in the Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the application, granted a further period of six weeks to make the pre-deposit. 8. Aggrieved by the said order of the Tribunal, the assessee is before this Court. 9. Learned counsel appearing for the appellant submitted that the appellant has no financial liquidity to pay the demand and, therefore, the plea of undue hardship has not been properly considered by the Tribunal. In any event, the primary issue that has to be considered is whether the up-linking charges should come under taxable service should be interpreted in favour of the appellant by granting waiver of pre-deposit. He further submitted that the assessee had already made deposit of Rs. 4,90,003/- after the issuance of show cause notice, but the Adjudicating Authority has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on debtors ledger and hence, has to be taken as cum-tax value. I accept the noticees contention and the demand after taking the value as cum-tax works out to Rs. 78,38,768/- as below. Value adopted in SCN treated as Cum-tax value (Rs.) 21,69,97,410 Transaction Value (Rs.) 19,50,03,427 Service Tax Payable (Rs.) 2,19,70,983 Service Tax paid (Rs.) 1,41,32,215 Differential Tax (Rs.) 78,38,768 12. From the above findings of the Adjudicating Authority, there appears to be an element of justification in the assessee's plea that the demand of tax liability has to be considered by the Tribunal on merits. Taking note of this plea, we are inclined to modify the order of the Tribunal. 13. The issue as to whether the up-link ..... X X X X Extracts X X X X X X X X Extracts X X X X
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