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TMI Blog2025 (2) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... the MSO to their customer, whether it would amenable to levy of service tax or not, was examined by the Co-ordinate Bench of this Tribunal in the case of Dish TV India Limited Vs. Commissioner of Central Excise and Service Tax, Aurangabad [2023 (7) TMI 1238 - CESTAT MUMBAI], wherein it was held that supply of STBs by the appellants is not a service, rather it is a deemed sale, leviable to VAT under the State legislature. The appellants themselves have correctly determined the service tax payable by them, from their financial records duly certified by the Chartered Accountant, and thus have fulfilled all the requirements for discharge of service tax liability along with applicable interest and penalty voluntarily, before filing this appeal before the Tribunal on 28.06.2021. In the above circumstances and on the basis of the discussions, there are no strong grounds found to hold that the appellants did not pay service tax in respect of the differential amount demanded in the show cause proceedings, owing to the reason that the service tax on the taxable value of turnover relating to the financial year 2014-2015 as detailed, have been duly paid by the appellants and the same has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 06.11.2020. Being aggrieved with the aforesaid order dated 06.11.2020, the appellants had filed an appeal before the Commissioner (Appeals), who in deciding the issue vide impugned order dated 15.04.2021 upheld the order of the original authority by dismissing the appeal filed by the appellants. Feeling aggrieved with the impugned order, the appellants have filed this appeal before the Tribunal. 3. Heard both sides and perused the case records. The additional submission made in the form written paper book in this case was also perused carefully. 4.1 In examination of the disputed issues in adjudication, the Original authority had decided the liability of service tax to be paid by the appellants vide Order-in-Original dated 06.11.2020. The relevant findings and conclusions arrived in passing such an order are extracted and given below: "7. The noticee have not paid the service tax amounting to Rs.5,32,686/- (@12.36%) by wilfully suppressing the facts from the Department with the intent to evade payment of service tax, by not disclosing the value of such services provided by them in the Service Tax Returns in Form S.T.-3... 10. There are no written submissions as the noticee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority as follows: "11. In the submission before me appellants have admitted the Service Tax liability of Rs,3,17,256/- and have contended the under mentioned calculation of liability ..... 12. ... I would also like to rely on the decision of Tribunal in the Case of UCN Cable Network Pvt. Ltd. Versus Commissioner of C.Ex &Cus., Nagpur [2016 (45) S.T.T. 565 (Tri.-Mumbai)] wherein it has been held that set top boxes are integral part of the services provided by the appellant as the same enhanced the receipt of the signals by the customers of the appellant. Hence, the amount received by the appellant is liable to be taxed under the said services. I, therefore, am not inclined to follow the deduction towards set top boxes as Service Tax has to be worked out on the gross amount received for the said services. 13. As regards deduction for entertainment tax appellants have relied upon the decision of the Tribunal .... In the instant case, except for the entry in the Profit and Loss Account evidence of payment of Entertainment Tax has been produced. Therefore, the appellants claim for Deduction does not stand on sound footing. 14. Appellants have sought to be given cum-tax benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the service income earned by them for the corresponding period is attributable to any of the negative list services specified in Section 66D of the Finance Act, 1994 or exempt from payment of Service Tax, due to any reason. It was further reiterated that demand notices may not be issued indiscriminately based on the difference between the ITR-TDS taxable value and the taxable value in Service Tax Returns. 3. It is once again reiterated that instructions of the Board to issue show cause notices based on the difference in ITR-TDS data and service tax returns only after proper verification of facts, may be followed diligently. Pr. Chief Commissioner/Chief Commissioner(s) may devise a suitable mechanism to monitor and prevent issue of indiscriminate show cause notices. Needless to mention that in all such cases where the notices have already been issued, adjudicating authorities are expected to pass a judicious order after proper appreciation of facts and submission of the noticee." ( emphasis supplied ) I find that though the SCN was issued in the present case prior to the issue of the above instructions dated 26.10.2021, the crux of the above instructions squarely appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vests with the Government of India, Ministry of Information & Broadcasting. (c) Earlier, the Government had legislated the Cable Television Networks (Regulation) Act, 1995 in order to regulate the cable television networks in the country and to protect the interest of the consumers. The need for provision of STBs arose from the statutory requirements brought out by the Government under the said Act, by inserting a new Section 4A of Act of 1995 (supra), which envisaged "Transmission of programmes through addressable system" [popularly referred to as Conditional Access System (CAS)] to be implemented with effect from a specified date. In simple words, the introduction of this change made it obligatory for every cable operator to transmit or re-transmit programmes of any channel in an encrypted form through a digital addressable system. (d) Similarly, in respect of DTH services, in terms of Direct to Home Broadcasting Services (Standards of Quality of Service and Redressal of Grievances) Regulations, 2007 issued by TRAI placed a legal obligation on the part of every DTH operator to give on non discriminatory basis, the direct to home service to every person making request for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of activity undertaken by the DTH operator in providing STB to a subscriber, is provision of an equipment, which is one-time activity, and it is not a part of DTH service in providing television channels for viewing by the subscriber. 8.....(iii) whether provision of STBs by the appellants to the subscribers would amount to rendition of service? On reading of Regulation 10 of the DTH Regulations (supra), it would transpire that a subscriber may or may not pay for his subscription charges. However, as a provider of DTH service, the appellants herein are entitled, even when no broadcasting signals go to the subscriber, to collect lease rental amounts for such period when the STBs remain with the subscriber. Hence, it can be concluded that the subscriber had control over the STBs during the time when he pays for the lease rental for the same and he can exercise the right of control by viewing free to air channels like Doordarshan etc., even if does not able to view the other channels for non-payment of requisite charges. Thus, we have no hesitation, but to conclude that supply of STBs by the appellants is not a service, rather it is a deemed sale, leviable to VAT under the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factual matrix of the present case, I find that the appellants themselves have correctly determined the service tax payable by them, from their financial records duly certified by the Chartered Accountant, and thus have fulfilled all the requirements for discharge of service tax liability along with applicable interest and penalty voluntarily, before filing this appeal before the Tribunal on 28.06.2021. In the above circumstances and on the basis of the discussions as above at paragraphs at 7 to 9, I find there are no strong grounds to hold that the appellants did not pay service tax in respect of the differential amount demanded in the show cause proceedings, owing to the reason that the service tax on the taxable value of turnover relating to the financial year 2014-2015 as detailed in table at paragraph 9 above, have been duly paid by the appellants and the same has been accepted by the Department. 11. In the result, the impugned order dated 15.04.2021 is set aside and the appeal filed by the appellants is allowed on the basis of their voluntary payment of differential service tax amount to the Government exchequer as per law as indicated in paragraph 9 above. ( Order pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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