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TMI Blog2024 (1) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in broadcasting Sahara channel on TV. SICC earns income by way of sale of time slots for advertisement on this channel. Appellant has been outsourced all the activities by SICC relating to distribution i.e., for broadcasting its channel through network of cable operators. The instant agreement fulfils the condition of taxable service by way of supply of tangible goods including machinery, equipment and appliances for use (earth station and related equipment in the instant case), without transferring right of possession and effective control of such machinery, equipment and appliances. The registration certificate of the utility van, which was a part of the equipment leased out, was registered in the name of appellant on 29.12.2008 and remains under their control, as shown in the fitness certificate issued by the Transport Department of Uttar Pradesh on 26.06.2014 - there are no merits in the submissions of the appellant that they entered into agreement with the lessee, whereby the effective ownership control and possession was also transferred to the lessee. From the terms of agreement and stipulations, the assets were made available to the lessee for use without tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invokable in the present case as the appellant was suppressing the facts with intent to evade payment of service tax. Interest - HELD THAT:- Issue in respect of interest has been settled by the Bombay High Court in case of COMMISSIONER OF CENTRAL EXCISE CUSTOMS,, AURANGABAD. VERSUS M/S PADMASHRI VV PATIL SAHAKARI SAKHAR KARKHANA LTD. [ 2007 (7) TMI 6 - BOMBAY HIGH COURT ] wherein it has been held that we are unable to agree with the proposition that interest u/s. 11AB is also not chargeable in case the short duty or unpaid duty is deposited with the Government before issuance of show cause notice. Penalties - HELD THAT:- As it is held that appellant to be guilty of suppression with intent to evade payment of tax, penalty under Section 78 needs to be imposed mandatorily - While upholding the penalties imposed under Section 78, the amounts confirmed earlier upheld - there are no merits in the submissions made by the appellant in respect of the penalties imposed upon them under Section 77 (1)(a) (2) of Finance Act, 1994. Appeal allowed in part. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Mehul Jivan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax payment on supply of the tangible goods services, the business premises of the appellant was visited/ searched on 20.3.2015. 2.2 During the course of search proceedings, it was noticed that the party has leased out earth station and other equipment and related infrastructure to have up linking facility of T.V Programs to their sister concern namely M/s Sahara India Commercial Corporation Limited (herein after referred to as the SICCL . Statement of Ms Santosh Khandelwal, the Cost accountant and company secretary was recorded on the spot. 2.3 After scrutiny of the agreements and other related documents and after making necessary enquiries it was observed that appellant has shown income from lease rent of Rs. 82.62 Crores as per the balance sheet and profit/loss account statement of the party for the financial years 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14. On this income appellant was required to pay service under the category of Supply of Tangible Goods Services . Thus appellant evaded payment of service tax as indicated in the table below: Financial Year Revenue from lease rent Rate of Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department only during the visit of premises of the party on 20.03.2015 by the officers of the Anti-Evasion branch of the Commissionerate. Thus, the party was found to have suppressed the vital facts from the department with the intent to avail the CENVAT credit to wrongly / evade the service tax payments and accordingly the extended period of limitation as provided under the proviso to Section 73 (1) of the Finance Act, 1994, was found to be invokable. 2.5 A show cause notice dated 19.08.2015 was issued to the appellant asking them to show cause as to why: (i) Service tax, amounting to Rs. 9,00,01,588/- (Rupees Nine Crores One Thousand Five Hundred and Eighty Eight only) should not be demanded recovered from them in terms of proviso to Section 73(1) of the said Act. (ii) Interest at appropriate rate should not be recovered from them under section 75 of the said Act for not depositing the above said service tax in prescribed time period. (iii) Penalty should not be imposed upon them under section 78 of the said Act for suppressing the taxable value and contravention of the provisions of Section 68 of the said Act read with Rule 6 of the Service Tax Rules, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or use . Relaince is palced on the following decisions: o Compucom Software Ltd. [2019 (25) G.S.T.L 75 (Tri.)] o G.S. Lamba Sons. [2015 (324) E.L.T. 316 (A.P.)] o Gimmco Ltd. [2017 (48) S.T.R. 476 (Tri. - Mumbai)] o Inox Air Products Ltd. [2014 (10) TMI 566 - CESTAT BANGALORE] o Arkay Logistics Ltd [2023(8) TMI 1237 CESTAT AHMEDABAD] o UFO Moviez India Ltd. [2018 (11) G.S.T.L. 391 (TRI. - MUMBAI)] affirmed by the Hon‟ble Supreme Court as reported at [2022 (61) G.S.T.L. 4 (S.C.)] o Petronet LNG Ltd. [2013(11) TMI 1011-CESTAT NEW DELHI] o SRF Ltd. (Chemical Business) [2023 TMI (1) 150 CESTAT NEW DELHI] o Bharat Sanchar Nigam Ltd. 2006 (2) S.T.R. 161 (S.C.) Payment of Vat is determinative factor for deciding the transfer of right to use and thereby If VAT is paid by the appellant, then no service tax is leviable. Reliance placed on o The TRU Circular D.O.F. No. 334/1/2008-TRU dated 29.02.2008 o Circular dated 23-8-2007 issued by the Department that clarifies that the payment of VAT/Sales Tax on a transaction has to be treated as sales of goods and levy of service tax on such transaction would not arise. o Nayana Premji Savala [2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility and does not affect in any way with possession or control of the assets. In the following cases, wherein insurance or license fees were paid by the lessor and court has held that same is not relevant factor to determine the transfer of right to use: M/s G S Lamba Sons 2012-TIOL-49-HC-AP-CT PETRONET LNG LTD. 2013(11) TMI 1011-CESTAT NEW DELHI UFO MOVIEZ INDIA LTD. 2018 (11) G.S.T.L. 391 (TRI. - MUMBAI)as upheld by the supreme court in UFO MOVIEZ INDIA LTD. 2022 (61) G.S.T.L. 4 (S.C.) o As per clause 7 of the agreement, M/s SICCL will be liable to pay compensation to the appellant in case of any damages to the asset. This shows that the possession has been transferred. If the possession would not have been transferred, the liability for any damage would be on the supplier i.e. the appellant in the present case. o Clause 8 states that appellant shall have right to inspect asset by the engineers at any time. It is submitted that if the effective control and possession is with the appellant then there is no need to have a clause in the agreement empowering the appellant to have right to inspect the assets given on lease o Clause 9 relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers Of Commerce And Industry 2014-TIOL-701-CESTAT-DEL and Tiger Security Services 2009 (14) S.T.R. 747 (Tri. Chennai). The aforesaid credit has been denied on the ground that there is no nexus with the business auxiliary services. M/s SICC has a unit Sahara India TV Network . The said unit is engaged in broadcasting Sahara channel on television. M/s SICC earns income by way sale of advertisement time slot on this channel. M/s SICC appointed the appellant to outsourced their all activities relating to distribution i.e. for broadcasting its channel through network of cable operators. M/s SICC and the appellant entered into distribution agreement for the same - copy of agreement is already attached as appellant The appellant received a fixed mark-up over and above the price paid to the cable operators for the said activity on which the appellant paid service tax under the category of Business Auxiliary Services (BAS). The said activity has been stopped from April 2012. Hence, tax has been paid during the period 2009-10 to 2011-12. Accordingly, credit has also been taken only for the period upto March 2012 as detailed below: Particulars Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to use goods and hence chargeable to VAT accordingly VAT was discharged by the appellant. Appellant is rightly eligible for the alleged Cenvat credit as same was used for business purpose. There was no malafide intention on the part of the appellant in discharging VAT liability in taking such credit. The matter relates to interpretation of the term 'right to use' definition of `input services' appearing under Rule 2(1) of the Cenvat Credit Rules. the Tribunal has held that when the issue relates to interpretation of the statute, extended period of limitation should not be invoked. Reliance is placed on the decision in case of Continental Foundation Jt. Venture [2007 (216) E.L.T. 177 (S.C.)]. The appellant had no malafide intention in treating the transaction as involving transfer of right to use the goods in claiming the Cenvat credit on various input services had bonafide belief that they are eligible for the same. Hence, penalty u/s 78 must not be levied. 3.3 Arguing for the revenue learned authorized representative reiterated the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all bear the entire license fees etc. to be paid to Govt. authorities in respect of usage of such assets (Clause 5) (d) The party i.e. M/s. Sahara Sanchaar Limited shall charge compensation in case of any damage (Clause 7) (e) The party ie. M/S Sahara Sanchaar Limited shall have right to inspect all the assets through their Engineers authorized representatives at any time to ensure the condition of the assets (Clause 8). (f) That the second party shall not be entitled to sub-let to any one, wholly or partially, any part of the assets without the prior consent of the first party (Clause 9). Here, it is pertinent to mention that the first party and second party in the said agreement are M/s. Sahara Sanchaar Ltd. and M/s. Sahara India Commercial Corporation Ltd. respectively On perusal of these clauses and the definition of Supply of Tangible Goods Services , it was found that the said agreement fulfilled the condition of taxable service by way of supply of tangible goods including machinery equipment and appliances for use (earth station and related equipment in instant case), without transferring right of possession and effective control of such machinery equipm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s analyzed the taxability of service of supply of tangible goods under Section 65(10)(zzzzj) of the Finance Act,1994 by stating that (a) there shall be shall supply of tangible goods (b) supply shall be for use by the recipient, and (c) supply control of such effected without transferring right Of possession and effective machinery, equipment and appliances. Thereafter, the party has argued about the effective possession by relying the decision given in the case of Supdt. And Remembrancer of Legal Affairs West Bengal Vs Anil Kumar Bhunja and Ors. (1979)4 SCC 274, wherein the court explained that Possession implies a right and a fact the right to enjoy annexed to the right of property and the fact of the real intention If involves power of control and intent to control., The party further stated that the same is in consonance with clause 6 7 of the said agreement as the Clause 6 stated that the maintenance charges incurred for the use of assets shall be borne by M/s SICCL and no part of such maintenance charges shall be borne by the party and Clause 7 stated that if by an act of God or human being the assets are damaged, destroyed or lost partially or wholly, M/s. SICCL would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being transferred to the lessee. (b) The insurance company issues insurance policy only in the name of the owner and not in the name of lessee and therefore, insurance cover has been taken by them and not by the lessee. (c) The license fee of Rs. 56,85,000/- appx. for an year, is to be paid to Govt authorities for operating the earth station. The said department (like insurance company), only recognizes the owner of the asset and not the lessee of the asset Hence, the license fee is to be paid by them. (d) As per clause 7 of the agreement, M/s SICC will be liable to pay compensation to them in case of any damages to the asset. This shows that the possession has been transferred. (e) It is mentioned in clause 8 that assessee shall have right to inspect asset by the engineers at any time. It is submitted that if the effective control and possession is with them then there is no need to have a clause in the agreement empowering the assessee to have right to inspect the assets given on lease. (f) The 'right to use' has been transferred to the lessee i.e. M/s SICC for its own use i.e. for the purpose of broadcasting its own TV Channel. The price at whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , delivery or supply is made It follows that such transactions will be liable for Sales Tax/Value Added Tax. In terms of section 66E(f) of the Finance Act, 1994, transfer of goods by way of hiring, leasing licensing or in any such manner without transfer of right to use such goods is a declared service and hence liable to service tax. In this regard some representations have been received. 2 The matter has been examined. I am directed to draw your attention to the fact that in any given case involving hiring, leasing or licensing of goods, it is essential to determine whether, In terms of the contract, there is a transfer of the right to use the goods. Further, the Supreme Court in the case of Bharat Sanchar Nigam Limited vs Union of India reported in 2006(2) STR 161 SC, had laid down the following criteria to determine whether a transaction involves transfer of the right to use goods, namely.- a. There must be goods available for delivery b. There must be a consensus ad idem as to the identity of the goods c. The transferee should have a legal right to use the goods - consequently all legal consequences of such use, including any permissions or licenses requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r portion of the life of the asset and at the end of the lease period, usually the lessee has an option to purchase the asset, The lessee bears the cost of repairs and maintenance and risk of obsolescence also rests with him. In contrast, an operating lease does not involve the transfer of the risks and rewards associated with that asset to the lessee. It is for a short term period and at the end of the lease period the lessee does not have an option to purchase the asset. The cost of repairs, maintenance and obsolescence rests with the lessor Similarly in the aircraft industry there are dry leases and wet leases . Generally 4.2 speaking, wet leases may involve short term provision of an aircraft along with crew maintenance and insurance while the lessee bears other operating expenses. In contrast dry lease is for a relatively longer term and involves the provision of an aircraft only without crew 4.3 The above two situations have been elaborated only to explain and emphasize the diverse nature of such transactions. There can be variations and in some cases, a combination. 5. In all these cases, no a priori generalizations or assumptions about service tax li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made: 1.04 OPERATING LEASE- WHERE ASSETS ARE GIVEN ON LEASE Leases in which the company does not transfer substantially all the risk and benefits of ownerships are classified as operating lease. Assets subject to operating are included in the fixed assets. Income on an operating lease is recognised in the statement of Profit and Loss Accounts over the lease period. Thus, it is apparent that it is undisputed fact that the issue involved in the present case is not concerning the financial leasing which has been distinguished by the Hon'ble Supreme Court in the case of Association of Leasing Financial Service Companies vs Union of India, as reported in 2010(20) S.T R. 417(SC) as under: 21. . ...That, in substance a finance lease, unlike an operating lease, is a financial loan (assistance/facility) by the lessor to the lessee. That, in the bailment termed hire the bailee receives both possession of the chattel and the right to use it in return for remuneration. On the other hand, equipment leasing is long term financing which helps the borrower to raise funds without outright payment in the first instance. Here the interest element cannot be compar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased equipment or was having right to possession and effective control during the period of lease for his own independent use. I also observe that clause 2 of the said agreement although mentions that the second party (lessee) shall enjoy the exclusive right to use the assets So installed but at the same time it mentions that the lessee shall not claim ownership Further it is also provided in the said clause that the said right to use can be extended by the first party (i.e. the party) to any third party after obtaining consent of the second party which clearly shows that the lessee was not having an exclusive right over the use of such equipments. Contrary to this, the lessee did not have such rights for further sub-leasing. This clearly implies that the party was always having its right to extend lease of such rights to use to any third party even during the period of lease with the lessee (i.e M/s SICCL). Thus, it is seen that such transfer of right to use in the present case was not in accordance with the principles laid down by the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. Vs UOl, as reported in 2006(2) S.T.R. 161(SC), wherein, one of the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 8) (f) That the second party shall not be entitled to sub-let to any one, wholly or partially, any part of the assets without the prior consent of the first party (Clause 9). 6.6.4 Thus, I have no iota of doubt that the said agreement does not transfer the right to use tangible goods with effective possession and control to the lessee i.e M/s SICCL. Thus, I am of the view that the same is taxable service chargeable to the service tax in terms of the provisions of Section 65(105)(zzzzj) read with Section 66, 66B and Section 66E(f) of the Finance Act, 1994, as applicable during the relevant period. I find judicial support to the above in the case upheld by the Hon'ble Supreme Court of India in the case of State Of Andhra Pradesh Anr vs M/s Rashtriya Ispat Nigam Ltd on 6 March, 2002, as reported in 2013(31) S.T.R. 513(SC), wherein it has been observed/held as under- 3. The High Court after scrutiny and close examination of the clauses contained in the agreement and looking to the agreement as a whole, in order to determine the nature of the transaction, concluded that the transactions between the respondent and contractors did not involve transfer of right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y service provider, and their access to the infrastructure did not amount to its possession or right to use goods - Mobile operator were merely provided access to the infrastructure, and that did not amount to service provider losing control over the infrastructure, and especially so as mobile operators could not transfer it during period of contract to a third party - Right of mobile operators was personal right to do something on the passive infrastructure belonging to service provider, it did not amount to creation of interest therein, and was only in nature of licence as defined under Section 52 of Easements Act, 1882 - In that view, there was no sale or deemed sale as defined under Section 2(29)(d) of Karnataka Value Added Tax Act, 2003, to attract levy of tax under it. 6.6.5 Further I observe that the party in their submissions has built their defence by treating the supply of tangible goods as deemed sales thereby depositing the VAT. I am not inclined to agree with the party's contention as it is no where stated in statute that one activity if subject to the VAT under state laws need not necessarily be levied to Central Law viz the service tax Or vice versa also no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umvent the clause and thus giving strength to the revenue case as the activity spell out of said agreement drives home one and only point that the party has not transferred right to use the tangible goods and thus activity would be covered under the ambit of service tax quite rightly, as alleged in the SCN. 6.7 Irregular availment of the CENVAT credit 6.7.1 It is alleged in the SCN that the party has availed the CENVAT credit of input services for providing their output service namely Business Auxiliary Services . On scrutiny of Input Service Credit ledger of the party for the financial year 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14, it was observed that the party has availed service tax credit on following input services- a) Space Segment Charges for KU banc / C band b) Vehicle Maintenance charges c) Freight Cartage for matrix video board: d) Training Service Installation, integration commissioning handholding e) Insurance charges Insurance premium of equipment; f) Chartered flight hiring charges It has been alleged that these expenses do not appear to be in relation to providing their output service 'Business Auxili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax be revisited. The relevant portion of the definition of 'input service' as Rule 2(1) of the CENVAT Credit Rules, 2004 is as under- input service means any service- (i) used by a provider of taxable service for providing an output service or (ii) used by the manufacturer . and includes services used in relation to modernization, renovation or repairs of a factor(y), premises of provider of output service or an office relating to such factory or premises, advertising or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal; but excluded services- A. ..... B. C. such as those provided in relation to outdoor catering., beauty treatment, health senices, cosmetic and plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefit extended to employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g picture looms ahead that their outward service is not the broadcasting services rather their outward services is culmination of mark up fees or commission amount received which as the BAS services. I find no reason to disagree with the allegation of SCN. Accordingly it can be safely deduced that there are no provisions in the service tax wherein the credit of service tax paid on input services credit having no nexus with the output service can be safely allowed. In line with the above findings, I do not find any strength in the material facts or the argument put forth by the party in support of their contention and I find the charges in the impugned SCN are in consonance with the service tax provisions/ rules regarding the ambit and the scope of definition of the services rendered by the party. I uphold the allegations of the Show Cause Notice and maintain that the party has availed irregular CENVAT credit and hold the same recoverable from them. 6.7.5. The case laws cited by the party do not hold good, as the decisions have been passed in different perspective with different facts and circumstances, inasmuch as the decisions cited delve into different issue. In the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. *** *** *** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it. 6.8. Recovery under the proviso to Section 73(1) of the Finance Act, 1994 6.8.1. The party has contended that the demand for the period up to September 2013 is hit by limitation in as much as they were under bonafide belief that transaction involves transfer of right to use the goods and hence chargeable to the VAT an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the same with the relevant tax invoices raised by them and returns filed with the State VAT authorities. As such, the contention that they had discharged the VAT on such activities during the relevant period iS not also verifiable. As such, I am convinced that non-payment of service tax on the supply of goods service and the wrong availment of service tax credit would have gone undetected, had it not been detected by the officers of Anti-evasion as mentioned in the brief facts of the case, therefore, I hold this as a fit case of evasion of service tax and irregular availment of the CENVAT credit by the party with the deliberate intent of non-declaration and suppression of vital information. Accordingly, the invoking of extended period under the proviso to Section 73(1) of the said Act in the case before me is fully justified. Accordingly, the charge of suppression is convincingly established against them. In the circumstances, I am of the view that payment of the VAT to the state authorities can not absolve them from the charge of the service tax under the Finance Act, 1994 and willful suppression and mis-declaration of vital information. I find that the SCN has been issued on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CENVAT Credit Rules 2004 and the same is liable to be disallowed and recovered from them under rule 14 of the CCR read proviso to Section 73(1) of the Act, ibid, along with interest under Rule 15 of the CENVAT Credit Rules, 2004 read with the Section 75 of the Act. ibid. 6.8.4 I also observe that the party has made another contention that if the tax is payable on the supply of tangible goods service, they would be eligible for the CENVAT credit of Rs. 2,27,05,076/-. I observe that the demand of service tax has been raised invoking the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994 as there exist sufficient grounds, as discussed hereinabove, for invoking the said proviso. 1, therefore, do not find it a fit case to allow the benefit of the CENVAT credit as sought by the party. On the merits of the contention, I observe that the party as sought allowing credit of input service credit on Space Segment Charges for KU banc / C band, Vehicle Maintenance charges, Freight Cartage for matrix video board, Training Service Installation, integration, commissioning handholding; Insurance charges / Insurance premium of equipment, and Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances. 14. Section 65(105)(zzzzj) of the Finance Act, 1994 was introduced by Notification No. 18/2008-S.T. with effect from 16 May, 2008. Section 65(105)(zzzzj) levies a service tax on the use of tangible goods. On the other hand, the transfer of the right to use any goods is treated as a deemed sale and is subject to sales tax under Article 366(29-A)(d) of the Constitution of India. It is necessary to distinguish the applicability of these two provisions. Article 366(29A)(d), provides : 366(29A) tax on the sale or purchase of goods includes xx xx xx (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; xx xx xx and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivery and redelivery but on the other essential terms of the Charter Party Agreement entered in the instant case which clearly makes out that there is a transfer of exclusive right to use the vessel which is a deemed sale and is liable to tax under the KST Act. In the instant case, full control of the vessel had been given to the charterer to use exclusively for six months, and delivery had also been made. The use by charterer exclusively for six months makes it out that it is definitely a contract of transfer of right to use the vessel with which we are concerned in the instant matter, and that is a deemed sale as specified in Article 366(29A)(d). On the basis of the abovementioned decision, it was urged that all Charter Party Agreements are service agreements. The submission cannot be accepted, as there is no general/invariable rule/law in this regard. It depends upon the terms and conditions of the charter party when it is to be treated as only for service and when it is the transfer of right to use. xx xx xx 54. When we consider the charter party in question in the context of applicable law, particularly in view of the constitutional provisions of Article 366(29A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as with the intention of taxing such activities that enable the customer s use of the service provider s goods without transfer of the right of possession and effective control. This provision creates an element of taxation over a service, as opposed to a deemed sale under Article 366(29A)(d). For the purpose of clarification, the Department of Revenue issued a Circular, D.O.F. No. 334/1/2008-TRU, dated 29 February, 2008. The said circular clarified the applicability of Section 65(105)(zzzzj) vis-a-vis Article 366(29A)(d). The relevant portions of the circular are as follows : 4.4 SUPPLY OF TANGIBLE GOODS FOR USE: 4.4.1 Transfer of the right to use any goods is leviable to sales tax/VAT as deemed sale of goods [Article 366(29A)(d) of the Constitution of India], Transfer of right to use involves transfer of both possession and control of the goods to the user of the goods. 4.4.2 Excavators, wheel loaders, dump trucks, crawler carriers, compaction equipment, cranes, etc., offshore construction vessels barges, geo-technical vessels, tug and barge flotillas, rigs and high value machineries are supplied for use, with no legal right of possession and effective contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely a new entry. Whereas Entry (zzzy) covers services provided to any person in relation to mining of mineral, oil or gas, services covered by Entry (zzzzj) can be identified by the presence of two characteristics namely (a) supply of tangible goods including machinery, equipment and appliances for use, (b) there is no transfer of right of possession and effective control of such machinery, equipment and appliances. According to the members of the 1st petitioner, they supply offshore support vessels to carry out jobs like anchor handling, towing of vessels, supply to rig or platform, diving support, fire fighting etc. Their marine construction barges support offshore construction, provide accommodation, crane support and stoppage area on main deck or equipment. Their harbour tugs are deployed for piloting big vessels in and out of the harbour and for husbanding main fleet. They give vessels on time charter basis to oil and gas producers to carry out offshore exploration and production activities. The right of possession and effective control of such machinery, equipment and appliances is not parted with. [...] (emphasis supplied) 20. The taxable service is defined as a servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Measurement Equipment. Buyer shall pay for providing gas pipeline connection including pipeline from distribution mains upto the measurement equipment; and measurement equipment to its unit as per the proposal submitted by the Seller. (emphasis supplied) Clause 5.4 provides that : 5.4 Gas pipeline from nearest Distribution Mains to the Measurement equipment shall be constructed and maintained by the Seller at Buyer s cost. The Buyer agrees to let the Seller or his authorised representative to supply, construct, install commission and maintain the supply pipeline from main distribution line upto the Measurement Equipment and Measurement Equipment in its premises. (emphasis supplied) The Buyer s Facilities and Seller s Facilities are defined to include the measurement equipment and pipelines and have been defined as follows : Buyers Facilities means plant, machinery, measurement equipment and other equipment from the Delivery Point onwards necessary to receive Gas under this Agreement. Seller s Facilities means the Seller s pipelines, gas plants, machinery, Measurement Equipment, other metering facilities and other equipment necessary fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Gas by the American Gas Association (AGA) Gas Measurement Committee report No. 3, 7 and 8. 9.2.2 The Measurement Equipment shall be supplied, installed, owned and maintained by the Seller at the Buyer s cost. 9.2.3 Working of the Measurement Equipment shall be verified periodically by the Parties. 9.2.4 . 9.2.5 . 9.2.6 ... 9.2.8 Notwithstanding anything contained in this Agreement, pending the result of any check/re-calibration, the Buyer shall not withhold payments to the Seller under this Agreement on this account. However, the Buyer shall be entitled to lodge his claim for refunds/adjustments, if any, depending upon the final results of such check/re-calibration within a period of fourteen (14) days of such check/re-calibration. Such claim, if found correct by the Seller, shall be adjusted against the subsequent invoice(s) of supply of Gas. 9.2.9 Pending the resolution of any dispute, the Seller shall produce the invoices on the basis of self-verification. (emphasis supplied) The provisions for billing and payment are contained in clause 12. The relevant portion is extracted below : 12. Billing and Payment 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilities at the Delivery Point and fit for purpose for off take of gas from the Delivery Point; (b) the Buyer s Facilities will be maintained in good working order and condition and so operated as to be compatible with the fulfilment of the obligations of the Buyer under this Agreement;... Under the above clause 14.3, the buyer warrants to maintain the Buyer s Facilities , which includes the measurement equipment , in good working order and condition and technically and operationally compatible with the Seller s Facilities. Under clause 16.4, if the buyer fails (otherwise than as a consequence of force majeure or the seller s default) to take fifty per cent or more of the cumulative DCQ over 45 consecutive days, the seller is entitled to terminate the agreement. 22. . 23. At the outset, it is clear from the provisions of the agreement, and it has been admitted by both the parties, that there is no transfer of ownership or possession of the pipelines or the measurement equipment (SKID equipment) by the respondent to its customers. Clause 5.3 of the agreement specifically provides that the 'Measurement Equipment' is to be supplied, installed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the buyer s premises at all hours. Ownership, control and possession of the measurement equipment is with the respondent. The measurement equipment comprises not only of electronic meters that are useful for determining the quantity of gas supplied to the purchaser at the Delivery Point, but also of isolation valves, filters and regulators that are crucial for regulating the pressure of gas and ensuring safe operation of the buyer s facilities. In order to maintain the sanctity of the equipment, the agreement casts the exclusive responsibility to install and maintain it on the respondent as the seller. The terms of the GSA would indicate that the quantity of gas supplied is to be measured at the Delivery Point. For this purpose, the measurement equipment is supplied, installed, owned and maintained by the seller at the cost of the buyer. The working of the measurement equipment is verified periodically by the parties to the agreement. If the buyer doubts its accuracy, this has to be communicated in writing to the seller, who alone is entitled to test, re-calibrate, remove or modify it. Similarly, if the seller has any doubt about the proper working of the measurement equipment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... variety of services such as telecommunication [Section 65(105)(zzzzb), Finance Act, 1994], renting of immovable property [Section 65(105)(zzz-z), Finance Act, 1994], and services related to art, entertainment, and marriage [Section 65(105)(zzzzr), Finance Act, 1994]. In the case of some articles, use may be signified by a physical operation of the article by the person who uses it. In such a case, actual physical use is what is meant by the supply of the goods for the use of another. In the case of others, the nature of the goods supplied impacts the character of the use to which the goods can be put. As an illustration, Section 65(105)(zzzze) of the Finance Act, 1994, seeks to tax services related to information technology and interprets the right to use to include the right to reproduce, distribute, sell, etc. [Circular D.O.F. No. 334/1/2008-TRU, dated 29 February, 2008] . This understanding of use differs from the supply of tangible goods under Section 65(105)(zzzzj) at hand, where effective control or possession is not ceded. Thus, physical operation is not the only or invariable feature of use. As a corollary to the same, technical expertise over the goods in question is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As an incident of regulating supply, it determines the correct quantity of gas that is supplied. The obligation to supply, install and maintain the equipment is cast upon the seller as an incident of control and possession being with the seller. Section 65(105)(zzzzj) applies precisely in a situation where the use of the goods by a person is not accompanied by control and possession. Use in the context of SKID equipment postulates the utilization of the equipment for the purpose of fulfilling the purpose of the contract. Section 65(105)(zzzzj) does not require exclusivity of use. The SKID equipment is an intrinsic element of the service which is provided by the respondent, acting pursuant to the GSA, as a supplier of natural gas to its buyers. 4.4 Again in the case of Quick Heal Technologies Ltd. [2022 (63) G.S.T.L. 385 (S.C.)] Hon‟ble Supreme Court observed as follows: 41. The Transfer of Right to use goods for case, deferred payment or value consideration is considered as deemed sale under sub-clause (d) of Article 366(29A) of the Constitution of India. Right to use of tangible goods and services has also been brought under the service tax net by the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght in that program may remain with the originator of the program. But the moment copies are made and marketed, it becomes goods, which are susceptible to sales tax. Even intellectual property, once it is put on to a media, whether it be in the form of books or canvas (in case of painting) or computer discs or cassettes, and marketed would become goods . We see no difference between a sale of a software program on a CD/floppy disc from a sale of music on a cassette/CD or a sale of a film on a video cassette/CD. In all such cases, the intellectual property has been incorporated on a media for purposes of transfer. Sale is not just of the media which by itself has very little value. The software and the media cannot be split up. What the buyer purchases and pays for is not the disc or the CD. As in the case of paintings or books or music or films the buyer is purchasing the intellectual property and not the media i.e. the paper or cassette or disc or CD. Thus a transaction/sale of computer software is clearly a sale of goods within the meaning of the term as defined in the said Act. The term all materials, articles and commodities includes both tangible and intangible/incorporea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) baggage and clause (e) any other kind of moveable property , it was held that any moveable article brought into India by a passenger as part of his baggage can make him liable to pay customs duty as per the Customs Tariff Act, 1975. Any media whether in the form of books or computer disks or cassettes which contain information technology or ideas would necessarily be regarded as goods under the aforesaid provisions of the Customs Act, these items being moveable goods, covered by Section 2(22)(e) of the Customs Act. What was transferred was technical advice on information technology. But the moment the information or advice is put on a media, whether paper or diskettes or any other thing, the supply is of a chattel. It is in respect of the drawings, designs, etc. which are received that payment is made to the foreign collaborators. The question whether the papers or diskettes etc. containing advice and/or information are goods for the purpose of the Customs Act was answered in the affirmative. This Court clearly held that the intellectual property when put on a media would be regarded as an article on the total value of which customs duty is payable . When technical materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lment referred to in Bailment by Palmer, 1979 edition, page 88. The third sort referred to there is when goods are left with the bailee to be used by him for hire, which implies the transfer of the goods to the bailee. In the case of sub-clause (d), the goods are not required to be left with the transferee. All that is required is that there is a transfer of the right to use the goods. In our view, therefore, on a plain construction of sub-clause (d) of Clause (29A), the taxable event is the transfer of the right to use the goods regardless of when or whether the goods are delivered for use. What is required is that the goods should be in existence so that they may be used. And further contract in respect thereof is also required to be executed. Given that, the locus of the deemed sale is the place where the right to use the goods is transferred. Where the goods are when the right to use them is transferred is of no relevance to the locus of the deemed sale. Also of no relevance to the deemed sale is where the goods are delivered for use pursuant to the transfer of the right to use them, though it may be that in the case of an oral or implied transfer of the right to use goods, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criber is concerned, no right to the use of any other goods, incorporeal or corporeal, is given to him with the telephone connection. In such circumstances, it was held that the electromagnetic waves or radio frequencies are not goods within the meaning of the words either in Article 366(12) or for the purpose of Article 366(29A)(b) . Emphasis was laid on the fact, whether there are any deliverable goods or not. If there are no deliverable goods in existence, like the one in BSNL (supra), there is no transfer of user under Article 366(29A)(b) at all. 47. Justice Dr. A.R. Lakshmanan, in his separate but concurring judgment, highlighted the following attributes in para 97 of the judgment to constitute a transaction for the transfer of right to use the goods:- 97. xx xx xx (a) There must be goods available for delivery; (b) There must be a consensus ad idem as to the identity of the goods; (c) The transferee should have a legal right to use the goods - consequently all legal consequences of such use including any permissions or licenses required therefor should be available to the transferee; (d) For the period during which the transferee has such le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the transfer of goods, is yet another economic activity intended to be exigible to State tax. (c) There are clear distinguishing features between ordinary sales and deemed sales. (d) Article 366(29A)(d) of the Constitution implies tax not on the delivery of the goods for use, but implies tax on the transfer of the right to use goods. The transfer of the right to use the goods contemplated in sub-clause (d) of clause (29A) cannot be equated with that category of bailment where goods are left with the bailee to be used by him for hire. (e) In the case of Article 366(29A)(d) the goods are not required to be left with the transferee. All that is required is that there is a transfer of the right to use goods. In such a case taxable event occurs regardless of when or whether the goods are delivered for use. What is required is that the goods should be in existence so that they may be used. (f) The levy of tax under Article 366(29A)(d) is not on the use of goods. It is on the transfer of the right to use goods which accrues only on account of the transfer of the right. In other words, the right to use goods arises only on the transfer of such right to use goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n without transferring the ownership, control and possession of the goods to the other person. Before we further proceed in the matter what is necessary is to take the note of the appellant and the parties involved in the transactions undertaken by the appellant. It is the submission of the appellant M/s SICC has a unit Sahara India TV Network (SITV) , engaged in broadcasting Sahara channel on TV. SICC earns income by way of sale of time slots for advertisement on this channel. Appellant has been outsourced all the activities by SICC relating to distribution i.e., for broadcasting its channel through network of cable operators. 4.6 Appellant had entered into agreement dated 01.04.2009 with SICC (which was resumed during the search of their premises. The relevant clauses of the said agreement as noted in the Show Cause Notice are reproduced below- Whereas the first party (M/s Sahara Sanchaar Limited) has established Earth Station' at Sahara India Complex, C-2,3,4, Sector-11, Noida and is acquiring other equipment and related infrastructure (hereinafter called 'Assets') to have up linking facility of T.V. Programmes. And whereas M/s Sahara India Commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the first party shall have right to inspect all the assets given on lease to the second party by the Engineers/ Authorised representative at any time in order to ensure the condition of the assets so given on lease and its proper utilization. 9. That the second party shall not be entitled to sub-let to any one, wholly or partially, any part of assets without the prior consent of the first party. 10. That in case of any dispute, the first party and second party shall settle the same mutually and if no decisions is reached, the matter shall be referred to Arbitrators(s), appointed by both the parties whose award shall be final and binding on both parties. 11. That this agreement to lease for giving assets on lease to the Second Party by the First Party shalkl come in to Opeartion from the 1 st Say of April 2009 and will be valid for a period of 60 months i.e. upto 31 st march 2014. However, this may be renewed further on the mutually agreed terms and conditions by both the parties. 12. Payment would be made on half yearly basis. This agreement was amended on 15.10.2010. The amended agreement was made effective from 01.04.2010 and was valid till expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration certificate of the utility van, which was a part of the equipment leased out, was registered in the name of appellant on 29.12.2008 and remains under their control, as shown in the fitness certificate issued by the Transport Department of Uttar Pradesh on 26.06.2014. The above referred clauses of the agreement and the registration certificate makes it evident that the assets continued to be owned and possessed by the appellant by applying the test as laid down by the Hon ble Apex Court in the decision of Adani Gas Ltd, supra, 4.7 Smt. Santosh Khandelwal, the cost accountant and company secretary with the Appellant, in her statement dated 20.03.2015, and submitted that they had given the legal right of possession and effective control to the lessee but she was unable to explain it in the light of agreement dated 01.04.2009. In his statement, recorded on 26.03.2015, Shri Hardeep Singh, Chartered Accountant and Head of Accounts of Appellant explaining the above referred clauses stated as follows: That they have taken the view of their legal advisor on incidence of service tax on lease rent and they were advised by their advisors that incidence of the service tax is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from those in equipment leasing/hire-purchase agreements between owner (lessor) and the hirer (lessee). There are two independent transactions and what the impugned tax seeks to do is to tax the financial facilities extended to its customers by the NBFCs under Section 66 of the 1994 Act (as amended) as they come under banking and other financial services under Section 65(12) of the said Act. The finance lease and the hire-purchase finance thus squarely come under the expression financial leasing services in Section 65(12) of the Finance Act, 1994 (as amended). In case of Rashtriya Ispat Nigam Ltd. [2013 (31) S.T.R. 513 (S.C.)] 2. The respondent is owning Visakhapatnam Steel project. For the purpose of steel project, it allotted different works to contractors. The respondent undertook to supply sophisticated machinery to the contractors for the purpose of being used in execution of the contracted works and received charges for the same. The appellant made provisional assessment levying tax on hire charges under Section 5E of the Act. The respondent filed writ petition seeking declaration that the tax levied, exercising power under Section 5E of the Act on the hir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer of right to use the machinery in favour of the contractor. Although it cannot be said that the appellant was estopped from contending otherwise in regard to assessment year 1988-89, it is an additional factor and circumstance, which supports the stand of the respondent. 4.9 In view of the above discussions and decisions we do not find any merits in the submissions of the appellant that they entered into agreement with the lessee, whereby the effective ownership control and possession was also transferred to the lessee. From the terms of agreement and stipulations as per the above decision we are of the view that the assets were made available to the lessee for use without transferring the effective control and possession over the said assets to the lessee and hence the service tax under the category of Supply of Tangible Goods Services has been rightly demanded from them. 4.10 From 01.07.2012 the scheme of taxation of services was changed and a negative list of services were defined which were kept outside the scheme of taxation. The service were defined as per clause 65B(44) as follows: service means any activity carried out by a person for another for cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified purpose(s) , is certainly a service provided by the person, who is the holder of copyright. As held by the Supreme Court in B.S.N.L. Case [(2006) 3 SCC 1 = 2006 (2) S.T.R. 161 (S.C.)], it is a nature of transaction that will determine the taxability in each case. 36. In 20 th Century Finance Corporation Limited v. State of Maharashtra, (2000) 6 SCC 12 = (2000) 119 STC 182 (SC), the Hon ble Supreme Court laid down the principles for determining the situs of lease sale transaction. The Hon ble Supreme Court has held that the situs of lease sale lies in the State where the agreement is executed if the goods are available for delivery. The Hon ble Supreme Court further held that if the goods are not available for delivery or there is no written agreement, then the sale will be deemed to have taken place in the State where the delivery is given. While so holding, the Hon ble Supreme Court elaborated upon the scope of Article 366 Clause (29A) and observing that the taxable event under Article 366(29A) is the transfer of right to use the goods and elaborately considering the scope of Article 366(29A), the Hon ble Supreme Court held as under: 26. Next question that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the producer/distributor/exhibitor. Service Tax is a levy not on the transfer of right to use the goods as described under Article 366(29A) sub-clause (d); but on the temporary transfer or permitting the use or enjoyment of the copyright as defined under the Copyright Act, 1957. In the case of Sales Tax Act, there would be transfer of right to use the goods . Whereas under the Service Tax Act what is levied is temporary transfer/enjoyment of the goods. The pith and substance of both enactments are totally different. Temporary transfer or permitting the use or enjoyment of the copyright is not within the State s exclusive power under Entry 54 of List II. Therefore, there is no merit in the contention that the taxable event provided under Section 65(105)(zzzzt) is covered by Article 366(29A). Thus to claim the benefit of exclusion clause appellant has to show that transfer of right ot use the goods was not in nature of transfer of right to use in absolute manner in the said goods and was just not the case of supply of goods for use. What is the crux of levy under the scheme of service tax under this category ius that goods have been supplied for use without transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to M/S SICC (which is maintained through its division Sahara India TV Network). d) Insurance Charges/Insurance premium of equipment This is related to insurance charges/premium paid towards equipments which were leased out to M/s SICC (which is maintained through its division Sahara India TV Network). e) Chartered flight hiring charges This is again related to our distribution business as senior officials have to travel to finalize the agreements related to the distribution service provided by the appellant. From the above it is evident that appellant has claimed credit of input services at 'a', 'b', 'c', 'd' which were use by them in providing the assets leased out by them to SICC. In our view appellant was fully aware of taxability of such transactions and have thorough out taken the CENVAT Credit in respect of these inputs services. The act of taking the credit respect of these input without payment of service tax on the output services clearly show the intention of the party to evade payment of service tax in respect of the lease amount recovered by them from SICC by suppressing the facts of lease from the department. As we have h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, unless the details of the expenditure incurred are given, it is not possible to make any conclusion one way or the other. It is on record that the appellant had not provided copy of the agreement to the department in respect of the services received from abroad and these were provided only in 2010 when the investigation commenced. Further, the exact details of the payments made in respect of the marketing promotion activities were given to the department for the first time only in January, 2011 vide letters dated 5-1-2011 and 7-1-2011. The show cause notice has been issued on 20-4-2011 and, therefore, it cannot be said that the show cause notice is barred by limitation of time. In the case of Mehta Co. 2011 (264) E.L.T. 481 (S.C.) Hon‟ble Apex Court held as follows : The cause of action, i.e., date of knowledge could be attributed to the appellant in the year 1997 when in compliance of the memo issued by the appellant and also the summons issued; the hotel furnished its reply setting out the details of the work done by the appellant amounting to Rs. 991.66 lakhs and at that stage only the department came to know that the work order was to carry out the job f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it to limit or restrain the sense or effect of something, which had before been said. He has obtained this meaning from Law Lexicon by P. Ramnatha Aiyar. In order to examine the submission by learned Counsel as to whether this terminal part of Explanation (2) gives the explanation so much strength as to mean that the party, which has utilised the facility of sub-section (2B) of payment of short duty as ascertained by the assessee himself, is not liable to pay the interest as u/s. 11AB, we have tried to search for the meaning of phrase but for . As per Concise Oxford Dictionary, 11th Edition, but for means except for , if it were not for . In view of these meanings obtained from the Law Lexicon and the Oxford Dictionary attached to the word but and to the phrase but for , the Advocate pleaded that it should be interpreted that had sub-section (2B) not been in existence or rather the facility to pay the short duty was not available, the party would have been required to pay interest u/s. 11AB and if the facility is available, on compliance of the same, the party would not be liable to pay interest. Taking into consideration that the tail piece relied upon by learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate Shri A.P. Kolte to Explanation in question. 13. For all these reasons discussed, we are unable to agree with the proposition that interest u/s. 11AB is also not chargeable in case the short duty or unpaid duty is deposited with the Government before issuance of show cause notice. 4.16 On the penalties imposed under section 78 we would observe that as we have held appellant to be guilty of suppression with intent to evbade payment of tax, penalty under Section 78 needs to be imposed mandatorily as has been held by Hon‟ble Supreme Court in case of Rajasthan Spinning and Weaving Mills Ltd. [2009 (238) ELT 3 (SC)];- 14. Sub-section 1A of Section 11A provides that in case the person in default to whom the notice is given under the proviso to sub-section 1 makes payment of duty in full or in part as may be accepted by him, together with interest under Section 11AB and penalty equal to 25% of the accepted amount of duty within thirty days of the date of receipt of notice then the proceeding against him would be deemed to be conclusive (without prejudice to the provisions of Sections 9, 9A and 9AA) as provided in the proviso to sub-section 2 of Section 11A. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se may be, the court, then, for the purpose of this section, the duty as reduced or increased, as the case may be, shall be taken into account : Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect Explanation. - For the removal of doubts, it is hereby declared that (1) the provisions of this section shall also apply to cases in which the order determining the duty under sub-section (2) of section 11A relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President; (1) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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