ASIANET SATELITE COMMUNICATIONS LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) 1. The connected WP (C)s are filed by cable operators challenging the constitutional validity of the provisions introduced to the Kerala Tax on Luxuries Act, 1976 (hereinafter called "the Act") by Finance Act, 2006 with effect from 01/04/2006, authorising levy of luxury tax at the rate of Rs,5/- per connection per month to be collected and remitted by every cable TV operator from the person enjoying the connection. In one of the Writ Petitions a subscriber to cable TV connection is also a petitioner along with the cable TV operating company. We have heard Senior counsel Sri. C. S. Vaidyanathan and other counsel appearing for the petitioners, Special Government Pleader Sri. Vinod Chandran, appearing for the State and Sri. John Varghese, counsel appearing for the Customs, Excise and Service Tax Department of the Central Government.

(2.) THE impugned provisions providing for the levy of luxury tax introduced in the Act are extracted hereunder for easy reference: "S.2. Definition clauses: (ca) "cable operator", means a person engaged in the business of receiving and distributing satellite television signals, communication network including production and transmission of programmes and packages for a monetary consideration. (fa) "Luxury provided by a cable operator" means any service by means of transmission of television signals by wire, where subscriber's television set is linked by metallic co-axial cable or optic fibre cable to a central system called the 'headend' and by using a video cassette or disc or both, recorder or player or similar such apparatus on which pre-recorded video cassettes or disc or both are played or replayed and the films or moving pictures or series of pictures which are viewed and heard on Television receiving set at a residential or a non-residential place of a connection holder." Charging Section:

(3.) THE next ground of challenge raised is based on Article 14 of the Constitution and the reason for the challenge is that under the charging Section 4 there is exemption in respect of connection provided by a cable operator engaged in the distribution of programmes of Doordarshan channels only. According to the petitioners, Doordarshan is also telecasting movies and entertainment programmes of the type transmitted by the cable TV operators through their lines and so much so, services are similar in nature. Respondents on the other hand contended that Doordarshan is a Government of India Undertaking and the programmes in their channels are modulated in such a way that it covers news, programmes on agriculture, education, farming etc., and the limited movies and entertainment programmes telecast by them are not comparable with the variety of programmes provided by cable TV operators which include programmes of Foreign Telecasting Companies. We are in agreement with this 3. 2006 KHC 372 : 2006 (3) SCC 1 : AIR 2006 SC 1383 : 2006 (3) KLT SN 64 : JT 2006 (3) SC 114. [KHC-27/11/2009] contention because what is excluded is only telecast of Doordarshan programmes distributed , through cable network which- include very limited entertainment programmes, whereas cable TV operators give exposure to the subscribers to various channels besides exhibiting large number of entertainment programmes of their own including movies, sports etc. Infact, anybody installing a TV with Antenna will have access to Doordarshan channels without any payment, whereas cable TV subscribers get access to pay channels and lot of entertainment programmes shown by cable TV operators. THErefore, those who have access to only programmes from Doordarshan channels are not comparable to other class of cable TV subscribers who get access to large number of other channels and entertainment programmes. So much so, we do not find any substance in the allegation of discrimination pertaining to exclusion of subscribers who have taken only cable connection giving Doordarshan channels only. This contention also, therefore, fails and is rejected.