ORDER

Akil Kureshi, J. - Considering the issues involved, we have heard learned advocates for the parties for the final disposal.

2. The petitioner has challenged an order dated 31st January, 2017 as at Annexure-C to the petition passed by the Joint Commissioner of Sales Tax (Appeals)the respondent No.2 herein in an appeal filed by the petitioner.

3. Brief facts are as under:

The Petitioner is a company registered under the Companies Act, 1956 and is engaged in the business of broadcasting agent earning commission on advertisements and distribution of television channels of MTV Asia LDC and Nickelodeon Asia Holdings Private Limited. The issue at stake is petitioner''s transactions of distribution income/subscription charges collected from subdistributors whether would be faxed under the Maharashtra Value Added Tax Act, 2002 ("MVAT Act" for short). The Assessing Officer passed order of assessment under the MVAT Act and Central Sales Tax Act ("CST" for short) on 5th October, 2015 including the petitioner''s distribution income in the turn over and taxed the same according to the prescribed rate. Against such order of assessment, the petitioner preferred appeal before respondent No.2 appellate authority. Before the appellate authority, the petitioner pointed out that under similar circumstances the Deputy Commissioner of Sales Tax (Appeals) under his order dated 27th February, 2007 had accepted the petitioner''s contention that the transaction in question did not invite sales tax. The relevant portion of the order of the Deputy Commissioner reads as under :

"I Have Gone Through The Assessment Record Along With Grounds Of Appeal As Discussed Above And Document Submitted By The Appellant Including Agreement Made Between Mtv India Ltd. And Various Cable Operators. It Is Observed That The Sto Has Levied Tax On Rs. 69,38,502/Treating It As Taxable To Of Sale Under Bst Act @ 4% Without Mentioning The Schedule Entry Under Which Tax Has Been Levied. This Amount Is In Fact The Distribution Income Of The Appellant From India. This Amount In Fact Represent The Income Received By The Appellant Towards The Subscription Charges Levied On The Viewers, Which Are In Turn Collected Through Local Cable Operator. This Subscription Charges Are Levied Against The Audio & Visual Transmission Received By The Viewer On His Television Set. These Are Received As "RADIO Waves" On The Antenna Installed By Cable Operator: Who In Turn Distribute These Signals Through Cable In His Local Area.

This fact was confirmed from the copies of agreement between appellant and various cable operators which are brought on record. So it is clear that the said income does not arise out of sale of goods defined in BST Act, 1959.

As per Hon''ble Supreme Court judgment in case of M/s BSNL Ltd. It is decided that goods do not include electromagnetic waves on Radio frequencies.

As appellant''s goods are of electromagnetic waves were squarely covered by above referred judgment, hence Sales Tax levied on distribution income on account of transmission of electromagnetic waves is deleted and consequential interest is also deleted regarding levy of PT at Rs. 20,728/, the appellant has not given any details to context this claim of non levy, hence PIT is confirmed and the Reassessment order passed by the STO is hereby set aside, hence, the assessment order dated 30.9.2005 stands.

ORDER

The appeal is allowed. The Reassessment order is hereby set aside and assessment order dat. 30.09.2005 stands. The STO is directed to grant the refund of Rs. 20,000/paid as part payment as per the provisions of law."

4. According to the petitioner, since the situation in the present case was identical, the respondent No.2 herein i.e. the appellate authority ought to have followed the earlier order passed by the Deputy Commissioner of Sales Tax. Ignoring such pleas of the petitioner, the appellate authority rejected the petitioner''s contention that the transactions were not assessable to VAT/sales tax at