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4. Briefly stated, the facts of the case are that the appellants are primarily engaged in broadcasting services through Direct To Home (DTH) satellite television, a taxable service as per the definition under the Finance Act, 1994. For providing such taxable service, the appellants got themselves centrally registered with jurisdictional Service Tax Commissionerate, Aurangabad. The appellants have been granted with a license under Section 4 of the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933 by the Central Government to operate DTH platform and provide DTH services. For the provision of DTH services, the appellants install certain equipment at the customer's premises which are known as Direct to Home Customer Premise Equipment (DTH CPE). This DTH CPE consists of Set Top Box (STB) along with its remote control, smartcard and Outdoor Dwelling Unit (ODU) kit including dish antenna, other components and accessories to enable reception of DTH services.

4.1 On noticing that for providing broadcasting services to their customers, the appellants are purchasing STBs and installing the same at the customers' premises on rental basis under an agreement, the jurisdictional Range Officer, had called for certain details and the same were submitted by the appellants under the cover of their letter dated 11.01.2011. The appellants were of the view that service tax was not payable, since they are paying VAT on the amount realized from the customers in lieu of set-top box charges or satellite box usage charges, claiming the same as 'deemed sale'. However, the department interpreted ST/86958/2017 ST/86706/2019 that in case of STBs, only the physical possession is with the customer, but the monitoring, sending and usage of signals are vested with the appellants and under their supervision, signals are being transmitted to the site of customers. Hence, the Department treated such modus operandi, as a case of transfer of right to use the STBs, without involving transfer of possession or effective control of the goods and thus, concluded that the transactions should be subjected to levy of service tax as an indispensable part of the broadcasting services. Accordingly, show cause proceedings were initiated by the department, which culminated into the impugned orders dated 27.12.2016 and 08.03.2019. In respect of the order dated 27.12.2016, the original authority has demanded service tax amounting to Rs.69,44,67,147/- as proposed for recovery in the SCN No. 10-ST/COMM/N/14-15 dated 13.06.2014. The said order also confirmed the service tax demand of Rs.26,62,29,645/- as proposed in the SCN No. 119/ST/COMM/2015 dated 15.10.2015. Besides confirmation of the said service tax demands, the original authority has also ordered for recovery of interest and imposed penalties under Section 77 and 78 of the Finance Act, 1994. In the impugned order dated 08.03.2019, the original authority has confirmed service tax demand of Rs. Rs.31,42,78,670/- with interest and also imposed penalty under Section 76 ibid, as proposed for recovery in the SCN No. 13/ST/COMMR/2018 dated 18.04.2018.

5.5 In countering the order passed by the Tribunal in the case of UCN Cabled Networks Pvt. Ltd. Vs. Commissioner of C. Ex. - 2016 (45) STR 565 (Tri.), as relied upon by the learned adjudicating authority, learned Advocate submitted that the said order has been passed sub-silentio on the various arguments, now being canvassed and that it is also not known to the parties in the present appeal, as to whether, VAT liability had been discharged by the concerned assessee in that decided case or not, not taken into consideration the definition of 'Service' under Section 65B (44) ibid, which excludes from its purview any transaction which amounts to sale under Article 366 (29A), i.e., 'deemed sale', under the Constitution of India. He also claimed that the set-top boxes and the consideration in the form of rental charges cannot be subsumed, as if it is a consideration for the broadcasting services, when the understanding between the subscribers and the Appellant is that the consideration of rental is for transfer of right to use of the set-top boxes.

'2(h) "direct to home service" means distribution of multi channel TV programmes by using a satellite system by providing TV signals directly to subscriber's premises without passing through an intermediary such as cable operator or any other distributor of TV channels;
2(f) "Direct to Home Customer Premises Equipment" means the components and accessories installed at the premises of the subscriber to enable the reception of a direct to home service and includes Direct to Home Set Top Box, the remote control for set top box and the dish antenna;'