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Showing contexts for: TDSAT in Union Of India vs Association Of Unified Telecom Service ... on 24 October, 2019Matching Fragments
d) direct the DoT to implement the recommendations of the TRAI dated 31.8.00 and 31.10.00;
e) direct the DoT to refund the BSOs all such excess amounts together with interest @ 12% per annum that may have been collected by it under its letter dated 26.7.01 or 7.5.03 or otherwise, contrary to the recommendations of the TRAI dated 31.10.00."
13. The objections described above can be said to be the first set of the grounds by the telecom operators raised at the first instance and the earliest. It appears that after TDSAT remitted the matter to the TRAI by observing that there was no adequate consultation with the TRAI before finalising the AGR and the components which form the AGR. While remitting the matter to the TRAI, the TDSAT made some observations regarding the inclusion in gross revenue of the licensee revenue derived from nonlicensed activities. The TDSAT directed listing for further directions/hearing after the recommendations of the TRAI are received or in the first week of October 2006, whichever is earlier (Order dated 07.07.2006, Coram: Justice N. Santosh Hegde, Chairperson, and D.P. Sehgal, Member).
15. It appears that after that the TRAI sent its recommendations to the TDSAT. At this stage, it is required to be noted that though in view of the order passed by this Court dated 19.01.2007 passed in Civil Appeal No. 84/2007, a liberty was reserved in favour of the Union of India to urge all contentions raised in the civil appeal and accordingly the Union of India submitted that the Union of India is entitled to reopen the issue whether the validity of the definition of AGR in the Licence Agreement could be questioned before the Tribunal including the submission that the AGR shall also include the revenue from activities outside the license, the TDSAT in its fresh order dated 30.08.2007 did not permit the Union of India to raise the aforesaid issues, and the Tribunal held that its earlier order dated 07.07.2006 having become final, it cannot be reopened after the disposal of Civil Appeal No. 84/2007. The Tribunal held that it's finding in the earlier order dated 07.07.2006 that the adjusted gross revenue "AGR" will include only revenue arising from licence activities and not revenue from activities outside the licence cannot be reagitated by the Union of India. Therefore, the TDSAT held that the AGR would include only the revenue from licence activities. After that the Tribunal in its fresh order dated 30.08.2007 considered the recommendations of the TRAI regarding the heads of the revenue to be included and the heads of the revenue to be excluded from the AGR and decided as follows:
23. After that, the respective telecom operators again approached the TDSAT challenging the demand notices/demand. The TDSAT by the impugned order has considered the specific head of items to be included or excluded under the definition of AGR. The TDSAT examined the following heads:
“1. Gain on sale of Capital Assets and receipt from the sale of scrap.
2. Insurance claim in respect of Capital Assets.
3. Discounts and Commissions.
Discounts allowed on international roaming.
10. Proceeds from divestment of investment in a company (Example, case of Sistema Shyam in Hexacom)
11. The demand for License fee in a circle where the Licensee is not granted spectrum (in the case of Videocon & S. Tel)
12. Interest, Penalty, and Interest on Penalty
13. Nonrefundable deposits and notional interest on interest free loans."
24. TDSAT in the impugned order has held that the Gain on sale of Capital assets and receipt from the sale of scrap cannot be included in gross revenue for computation of licence fee. However, it is required to be noted that the said issue was raised earlier and considered by the TDSAT in its earlier order dated 30.08.2007 and held in favour of the telecom operators. However, this Court, in the case of AUSPI (supra) – expressly set aside the order passed by the TDSAT. Therefore, subsequently it was not open for the TDSAT to again hold contrary by the impugned order on the head as mentioned earlier and it can be said to be barred by res judicata because of the specific order of AUSPI (supra).