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TMI Blog2020 (1) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... to the subscribers therefore, the appellants are entitled to avail the benefit of exemption N/N. 6/2005-ST dated 01.03.2005 and N/N. 33/2012-ST dated 20.06.2012. Thus, the appellant is entitled for exemption under Notification No. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012 - the extended period of limitation is not invokable. Consequently, no penalty is imposable on the appellant - the appellant is liable to pay service tax on the gross value of services received by them and is entitled to avail cenvat credit of service tax paid on the amount remitted to the MSO. The adjudicating authority shall quantify the demand for the period within the period of limitation on production of data of services provided by the appellant of cable services to the subscribers within the 30 days of receipt of this order on which the appellant shall paid the service tax, if payable. Appeal allowed by way of remand. - Mr. Ashok Jindal, Member (Judicial) and Mr.Bijay Kumar, Member (Technical) Present for the Appellant: Ms.Amanpreet Kaur, CA Ms. Mamta Kharbanda, CA Present for the Respondent: Shri Bhasha Ram, AR ORDER The appellant has filed appeal alongwith application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Blue Star Communication and others (supra) wherein this Tribunal has observed as under:- 11. On careful consideration and submission made by both sides, the following issues emerges as under:- a) Whether the appellants are providing branded service or not? Consequently they are entitled for exemption under Notification No. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012. b) Whether the extended period of limitation is invokable or not? c) Whether the best judgement under Section 72 of the Finance Act, 1994 has been assessed correctly or not? d) Whether the appellants are liable to pay service tax on the gross value of the services provided by them or not? e) Whether the appellants are entitled for cenvat credit of service tax paid by the MSO or not? 12 . Whether the appellants are providing branded service or not? Consequently they are entitled for exemption under Notification No. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012. In this case, the appellants are cable operator and providing cable services to the subscribers on the basis of signals received from the MSO. The subscriber has not asked for any brand for prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the product and him. This is very far from the facts of the present case, in that, as has been held by us above, it is clear that the markings required on the jute bags are compulsory, being required by the Jute Commissioner, and are not for the purpose of enhancing the value of the jute bags by indicating a connection in the course of trade between the aforesaid products and the manufacturer of those products. Further, in the case of Maheshwari Industries (supra), the Hon ble Apex Court observed the criteria for use of brand name which is as follows:- 1) It must be a name or mark such as symbol, monogram, label, signature or invented word or writing; (2) It must be used in relation to such specified goods, for the purpose of indicating a connection in the course of trade between such goods and some person using such name or mark, with or without any indication of the identity of that person; and (3) The mere fact that the specified goods manufactured by a person bear a brand name or trade name of another manufacturer, is not sufficient to conclude that those goods are manufactured by such other manufacturer or trader. 19 . Therefore, it is clear that a person may be taken to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d category. As already noted that they are not acting as a local cable TV operator in transmitting signals to the clients. Neither they are involved in receiving satellite signals as a MSO. The Finance Act, 1994 borrows the definitions of Cable operator‟ and Cable service‟ from Cable Television Network (Regulation) Act, 1995. Considering scope of definition under Section 2(aa) of the said Act there is a possibility of bona fide belief for non-tax liability. Considering the ratio followed by the Tribunal in the abovementioned cases and also considering the facts of the present case, I find that it is a fit case for invoking the provision of Section 80 for waiver of penalties imposed on the appellant. Accordingly, the penalties are set aside and the appeal is allowed only to that extent. Therefore, no penalty is imposable on the appellants. c) Whether the best judgement under Section 72 of the Finance Act, 1994 has been assessed correctly or not? In this case, it is a fact on record, the appellants were not given time of supply the data of their activity and assessment has been done on the basis of the data supplied by the MSO which is not correct, therefore, we hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are entitled for cenvat credit of service tax paid by the MSO or not? We find that the out of the total amount received by the appellants, some amounts of total subscriptions, the appellants are remitting to the MSO on which the MSO is paying service tax, therefore, the signal provided by the MSO to the appellant is an input services for the appellants. Therefore, the service tax paid by the MSO is available as cenvat credit to the appellants. In these circumstances, we hold that the appellants are entitled to avail cenvat credit of the service tax paid by the MSO. 13. In view of the above, the following order is passed:- a) the appellants are entitled for exemption under Notification No. 6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012. b) the extended period of limitation is not invokable. Consequently, no penalty is imposable on the appellants c) the appellants are liable to pay service tax on the gross value of services received by them and is entitled to avail cenvat credit of service tax paid on the amount remitted to the MSO. d) The adjudicating authority shall quantify the demand for the period within the period of limitation on production of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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