1. This application for waiver of pre-deposit is filed alongwith appeal against order dated 22.09.2011 of Commissioner (Appeals), New Delhi-II. On
hearing the submissions by the Id. Counsel for the applicant and the ld. AR it is found fit that the main appeal itself can be disposed of. Accordingly,
after waiving the requirement of pre-deposit the main appeal itself is taken up for disposal.
2. The appellant is engaged in providing taxable service under the category of ""Cable Operator Services"". Proceedings were initiated by the
department for short payment of service tax by the appellant. After enquiry a show cause notice dated 23.10.2008 was issued for demanding service
tax of Rs.2,66,660/- under ""Cable Operator Services"" and Rs.2,04,039/- under ""Business Auxiliary Service"". After due process, the case was
adjudicated by the original authority vide his order dated 25.03.2010. The service tax demand of Rs.4,70,699/- was confirmed alongwith equivalent
amount of penalty and Rs.5,000/- penalty under Section 75A of the Finance Act, 1994. On appeal, vide the impugned order, the Commissioner
(Appeals) upheld the order and rejected the appeal. Aggrieved by this the appellant is before us.
3. Ld. Counsel for the appellant submits that the order by the lower authorities are not sustainable as no proper analysis of taxable service has been
made. The quantification of value has not been made properly. The principles of natural justice have not been followed strictly as they are not
provided opportunity to defend their case.
4. Ld. AR reiterated the findings of the lower authorities. The service tax liability of the appellant is in two categories of services and there is no
infirmity in the said order. The impugned order was passed after hearing the appellant and taking into account the points raised by them.
5. We have heard both the sides and examined appeal records. We find that the department's case is that the appellant did not reflect full taxable
value in respect of ""Cable Operator Services"" rendered by them. These details have been collected by the department through another Government
department, namely; Entertainment Tax Officer. The appellant is not questioning data so collected but are insisting that the service tax is payable on
receipt basis and the department has not established the amount indicated in the document for entertainment tax is also liable to service tax. We find it
is for the appellant to establish that the said consideration has not been received by them during the material time. No such attempt has been made by
the appellant. We find the appellant did not contest the taxability per-se, under the two categories of taxable services rendered by them. In fact, they
were aggrieved by the nature and attitude of the complainant whose information resulted in the enquiry against the appellant. Regarding appellant's
claim for considering the value as cum duty value for tax purposes we find they have not adduced any supporting evidence like receipt issued etc. to
claim the benefit of the provisions of Section 67(2). We find that the appellant did not submit any factual or legal grounds to interfere with the
impugned order. Accordingly, the appeal is dismissed. Stay and Miscellaneous applications are also disposed of.
