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TMI Blog2023 (8) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the appellant taking shelter of the circular dt. 09.07.2001 therefore fails. It is stated that the channels 'SS Music' as well as 'Sur Sangeeth' are owned and operated by the appellant. Again, the accounts maintained by appellant show collection of charges towards airtime allotment. This fact of collecting charges for airtime allotments would lead to a strong inference that the appellant has indeed been rendering 'Broadcasting Service' - The present status of the application shows abandoned . Merely because an application was given by M/s.Fortune Media (P) Ltd. it cannot be said that the said channel belonged to them and is discussed in this order. The permission letters submitted before the competent authority for issuing licence shows that these channels SS Music and Sur Sangeeth are owned by appellant. On merits, we do not find any grounds to accept the contention of appellant that they are not rendering any broadcasting services. Time Limitation - HELD THAT:- The appellant has totally suppressed these facts and has tried to create confusion so as to escape the liability to pay tax. The agreement entered by M/s.Coxswain Technologies Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... television channel under the name style Coxwaine Channel . On 08.10.2004, appellant obtained permission from the Ministry of Information Broadcasting for changing the name of the channel into SS Music . It was also seen that the permission letter dt. 11.09.2003 given by the Ministry to appellant was for operating Sur Sangeeth channel in Hindi language. The license agreement dated 11.08.2005 entered into appellant with M/s.Videsh Sanchar Nigam Limited confirmed the fact that the appellant continued to own and operate Sur Sangeeth Channel . The accounting of income under the head Fee for allotment of air time and uplinking income thus appeared to indicate that the appellant was indeed providing broadcasting service as well as uplinking facilities to other channels. The appellant had been paying service tax under the category of Business Support Service (BSS) on the income earned by them only from 2006-07. In spite of repeated request by the Audit Group, the appellant did not provide break up income for broadcasting and uplinking for the year 2005-06. It was also noticed that as the uplinking charges are taxable under BSS w.e.f. 01.05.2006, the appellant should have paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 under BSS on the uplinking charges received by them. It is contended by the counsel that in the SCN, the department itself is not sure as to whether the activity would fall under Broadcasting Service and it is treated that the appellant ought to have paid at least under BSS. Ld. Counsel explained that appellant-company is engaged in the uplinking business for television channels owned by others. During the material time M/s.Videsh Sanchar Nigam Ltd. (VSNL) was only a licensed company to uplink TV channel programs either by themselves or through persons who have been granted permission by the Ministry of Information and Broadcasting (MIB), New Delhi. Later, this position was modified and private operators were also given licenses to operate their ports. One of the various private companies who had obtained license to operate television programs is M/s.Fortune Media Pvt. Ltd. As the appellant proposed to undertake uplinking activities appellant filed application for permission to uplink TV programs and thereafter obtained the permission. For obtaining the permission it was required to indicate the name of TV channel proposed to be uplinked and the appellant thus indicated the TV c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department has issued SCN under Broadcasting Service due to the misconception that the appellant is rendering broadcasting services also. 5. Ld. Counsel submitted that there are factually incorrect allegations in the SCN. It is alleged in the SCN that the appellant originally owned two channels namely SS Music and Sur Sangeeth which is incorrect. The appellant had never owned these channels and these channels belong to the respective companies mentioned above. To substantiate this, the appellant had produced trade mark registration request made by Fortune Media Pvt Ltd. The said request letter would show that the above broadcasting company had requested for registration of trade mark as SS . Original authority did not consider the said document observing that the request made for trade mark has been withdrawn. It is submitted by the ld. Counsel that even though the request for the trade mark has been withdrawn, the document would evidence that the name of the company who has requested for registration of trade mark ( SS ) is M/s.Fortune Media Pvt. Ltd. and not the appellant. This document would be sufficient proof that the appellant does not own broadcasting company and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to para 11 of the findings in the impugned order and submitted that the show cause notice was issued proposing to demand the service tax of Rs.1,03,34,893/- for the period from 2005-06 to 2009-10. However, the appellant had put forward the contention that the said amount received by them includes tax and the demand has to be quantified taking the value as cum tax which would work out to be Rs.78,38,768/- only. The adjudicating authority accepted the said contention of the appellant and confirmed the demand only to the extent of Rs.78,38,768/-. 10. The main ground put forwarded by the appellant is that they are rendering only up-linking services and is not engaged in broadcasting services. It is submitted by the Ld. AR that in their accounts, the appellant has mentioned amounts received under the head Air time allotment charges / uplinking charges . The mention of air time allotment charges would definitely indicate that the appellant is rendering broadcasting services also. There cannot be any amount in the nature of airtime allotment for uplinking services. Further, the adjudicating authority has examined the permission letter dt. 03.06.2003 issued by MIB and also the permis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpense of Rs.62,10,000/- towards renting of satellite. Such expenses towards renting of satellite can only be incurred for the purpose of broadcasting. 12. The circular dt.09.07.2001 adverted to by the Ld. Counsel was countered by the Ld.AR, by submitting that the said circular was issued prior to the amendment brought forth in the definition of Broadcasting Service . After the amendment to the definition of Broadcasting Service another circular dt. 27.07.2005 was issued by the department. After the amendment, the services rendered by Multi System Operators (MSO) who were permitted to receive signals from the broadcasting agencies on prescribed amount were also subjected to service tax. The decision in the case of CC VS Worldspace India P. Ltd. 2008-TIOL-42262-CESTAT BANG was relied by the Ld. A.R to argue that after the amendment brought forth with regard to definition of 'broadcasting agency' the earlier circular dt.09.07.2001 has lost its relevancy. Ld. A.R prayed that the appeal may be dismissed. 13. Heard both sides. 14. The issue to be decided is whether the demand, interest and penalties imposed alleging that the appellant is rendering 'Broadcasting S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se may be; and in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme or collecting the broadcasting charges on behalf of the said agency or organisation, by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner, 65(15) broadcasting agency or organisation means any agency or organisation engaged in providing service in relation to broadcasting in any manner and, in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes its branch office or subsidiary or representative in India or any agent appointed in India or any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting broadcasting charges on behalf of the said agency or organisation. Broadcasting and broadcasting agency or organisation have been defined as under with effect from 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy or organization, having its head office situated in any place outside India, includes service provided by its branch office or subsidiary or representative in India or any agent appointed in India or any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting the broadcasting charges or permitting the rights to receive any form of communication like sign, signal, writing, picture, image and sounds of all kinds by transmission of electro-magnetic waves through space or through cables, direct to home signals or by any other means to cable operator including multisystem operator or any other person on behalf of the said agency or organisation . Explanation For the removal of doubts, it is hereby declared that so long as the radio or television programme broadcast is received in India and intended for listening or viewing as the case may be, by the public, such service shall be a taxable service in relation to broadcasting, even if the encryption of the signals or beaming thereof through the satellite might have taken place outside India. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry s letter of even number dated 3rd June, 2003 whereby permission was conveyed to M/s.Coxswain Technologies Ltd. to uplink your TV channel namely COXSWAIN from India through VSNL, Mumbai, the undersigned is directed to convey no objection of this Ministry to change he name of your channel from COXSWAIN to SS MUSIC . All other terms conditions, as contained in the permission letter dated 3.6.2003 would continue to apply. 22. In these letters, it is stated that Coxswain channel belongs to the appellant. It is also noted that the name of the channel has been changed from 'Coxswain' to 'SS Music'. It is stated that permission is granted to the appellant to uplink their 'Sur Sangeeth' channel in Hindi language. Though the appellant contends that they do not own or operate any channel and therefore is not rendering any broadcasting service, they have not been able to give plausible explanation as to why in these permission letters it is stated that these channels are owned and operated by them. Further, in the licence agreement dt.11.08.2005 entered by the appellant with M/s.VSNL it is stated as under : M/s.COXSWAIN TECHNOLOGIES LIMITED, operatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng any broadcasting services. 24. Ld. Counsel has argued on the ground of limitation also. It is the case of the appellant that they have been registered with the service tax and have been filing returns from 2002 onwards. It is argued by the Ld. Counsel for appellant that after obtaining legal opinion they had surrendered the registration for Broadcasting agency and got registration under BSS for payment of service tax on the uplinking charges received by them. However, it has to be seen that there were charges received by the appellant for airtime allotment also. Expenses incurred is the nature of satellite rent etc. Appellant has taken the shelter of Board circular dt. 09.07.2001 for non-payment of service tax under Broadcasting Service . Even after amendment w.e.f 16.06.2005, appellant has not paid service tax for broadcasting services. We therefore do not find any ground to hold that invocation of extended period is not sustainable. The appellant has in fact disguised rendering of Broadcasting services behind uplinking services and misguided the department repeatedly by furnishing letters that they were providing only uplinking services. 25. The original authority in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready discussed, in the letters submitted before the MIB for obtaining license they have stated that they own Coxswain channel; the name changed to SS Music . It is also stated that they own Sur Sangeeth . The appellant has been denying the ownership of these channels all along. The documents/records placed before us show that M/s.Fortune Media Pvt. Ltd. is owned and operated by the appellant itself and the agreement entered by the appellant contending that they provide uplinking services for SS Music channel is only a sham document. The agreement which is said to have been entered into by the appellant (M/s.Coxswain Technologies Limited) with M/s. Fortune Media Pvt. Ltd. dt. 17.06.2004 is seen signed by Sri K. Shriram as the Director of Coxswain Technologies Ltd. and Sri B.D. Ramesh Babu as the President of M/s.Fortune Media Pvt. Ltd. The copy of the relevant part of the agreement is as under : 27. From the above, it is made to understand that Sri K. Shriram is the person representing M/s.Coxswain Technologies Ltd. (appellant herein). The very same impression is seen in the application dt. 10.07.2006 submitted for registration of Business Support Service filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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