NATIONAL CABLE NETWORK Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THIS is an appeal filed by the Cable Operator challenging the order of the Commissioner (Appeals), Jaipur. In the impugned order, the learned Commissioner has confirmed the demand of Service Tax of Rs. 78,025/ - under Section 68, interest under Section 75 and penalty under Sections 76, 78 and 77 of the Finance Act, 1994.

(2.) THE learned Counsel for the appellant submits that the appellants are challenging the chargeability of the tax but their grievance is mainly on the following grounds: The show cause notice issued by the department has invoked the extended period of demand more than one year by stating that there was an intention on the part of the appellants to evade payment of tax. It was contended that no proof has been established by the department in the show cause notice nor in the order issued by the authorities below. Secondly, the learned Counsel for the appellant also contended that there was some calculation error while arriving at the demand amount. Between 1 -9 -2003 and 31 -10 -2003, there was fierce rivalry between multi system operators at Kota and hence no service could be provided by the appellant. To prove its point, copies of some newspaper cuttings from Dainik Bhaskar dated 3rd October, 2003 and 5th October, 2003 were also produced before me. It was further submitted that for the entire disputed period i.e. 16 -8 -2002 to 31 -12 -2003, the department (as per the statement of the appellant) conceded Rs. 9,45,000/ - as a reasonable figure of taxable value and therefrom computed the tax liability on them (Rs. 56,671/ -). Overlooking this fact, the department had erroneously computed tax liability of Rs. 21,358/ - for the period between 1 -9 -2003 and 31 -12 -2003 which, the learned Counsel calls "double taxation". It was further contended that the penalty imposed on the appellant has been draconian as its total amount far exceeds the tax alleged to be evaded by them. In this context, it was pleaded that in the appeal before the Commissioner of Central Excise they had in ground No. 1 brought out this fact that they are small entrepreneur, having no knowledge of service tax which was a new levy, thereby substantially making out a case by bringing the ingredients under Section 80 of the Act before the authorities which was never considered by the Commissioner (Appeals) in his impugned order.

(3.) THE learned authorized representative (DR) submits that the appellants were silent before the authorities below on the limitation issue as they never raised this point. Similarly, the appellants never raised their grievance about the double taxation and valuation method etc. before the lower authorities and they are bringing this for the first time before this forum. Though it was contended that new issues cannot be raised at this juncture, the learned DR has no answer relating to the issue of "double taxation" as raised by the appellant.