Interconnection charges levied by a telecom operator to another for enabling access to interconnection links do not fall under the ambit of "Telecommunication Service" as defined in Section 65(104c) of the Finance Act 1994 or "Business Support Services" introduced vide Notification No. 15/2006-S.T., dated 25-4-2006.

JUDGMENT

K.S. Jhaveri, J. - By way of this appeal, the appellant has challenged the judgment and order of the Tribunal [2013 (31) S.T.R. 707 (Tribunal)] which delivered the judgment on 18-10-2011, though it was heard on 1-8-2011.

1.1. For the sake of convenience, we are reproducing the order of the Tribunal which reads as under :

"But such order has been lost in transit for which that could not be issued. Therefore, the matter was placed before Hon''ble Vice President for appropriate order. In terms of order dated 18-10-2011, the Hon''ble Vice President has ordered the ''Duplicate order to be issued."

2. This court while admitting the matter has framed following substantial questions of law :-

"(i) Whether ''infrastructure'' or ''port'', charges for the space provided by the appellants to private operators enabling them the access of ''interconnection links'', is covered under ''Telecommunication Service'', defined in Section 65(104c) of the Finance Act 1994?

(ii) Whether ''infrastructure'' or ''port'', charges facility'', provided by the appellant, to the private operators enabling access to interconnections links is taxable w.e.f. 25-4-2006 under the ambit of "Business Support Services" introduced vide Notification No. 15/2006-S.T., dated 25-4-2006 or under the ambit of ''Telecommunication Service'' introduction vide Notification No. 23/2007-S.T., dated 22-5-2006"

3. The paper book which has been filed by the appellant with regard to inter-connection charges reads as under: -

"Chapter 6

Interconnection Charges

6.1. Interconnectivity To Bsnl Network.

6.1.1. Provision of links to interconnect CMTS Provider''s network with BSNL''s network at the technically feasible interconnecting exchange will be the responsibility of the CMTS Provider as provided under Clause 2.1.1 and 2.1.2.

6.1.2. The cost of terminating equipment including measurement devices in the BSNL''s switch from where the POI is taken, shall be payable by CMTS Provider.

6.1.3. On answer by the called party, in CCS7 signaling a Charge Band Message (Ref. Annexure-4) will be sent, if required, by the Level 1/LDCC TAX of BSNL to CMTS Provider''s exchange.

6.2. Detailed Billing

6.2.1. For every STD/ISD call originating from the CMTS Provider''s network and accepted by BSNL, a detailed billing record wherever possible and/or bulk billing record will be generated in the LDCC TAX. For this purpose the CMTS Provider shall supply calling subscriber''s identity for detailed billing purpose.

6.3. Connection Charges.

6.3.1. Set Up Cost

(a) CMTS Provider shall pay to BSNL one time charge, towards configuration, testing and commissioning charges, @ Rs. 10,000/- per PCM port subject to a maximum of Rs. 1,00,000/- per POI location per occasion for set up of POIs.

(b) CMTS Provider shall pay to BSNL the charges as decided by BSNL for the cost of enhancement of features in its switching and transmission networks and their up-gradation, if any, for providing the specific facilities requested which are not available with BSNL at the location of the POI.

6.3.2. Post Charges

Note : N above refers to the number of ''ports'' demanded by the Interconnection Seeker within the capacity ranges under the column ''No. of Ports''.

6.3.3. Other Charges

It shall not be mandatory for BSNL