CHITRA VENKATARAMAN, J.

1. The batch of Writ Petitions filed before this Court challenge the the provision contained under Section 4-I of the Tamil Nadu Entertainments Tax Act, 1939, (hereinafter referred to as 'the Act'), as inserted under Amendment Act 25 of 2011, with effect from 27.09.2011, levying entertainment tax at 30% of the gross charges, excluding service tax on Direct to Home Services, popularly called as DTH, received by the provider of DTH. The contentions taken by the various petitioners in a nutshell are as follows:

2. Writ petitioners in W.P.Nos.25721 of 2011 – M/s.Tata Sky Limited, W.P.Nos.27070 to 27072 of 2011 – M/s.Dish TV India Limited and W.P.No 25873 of 2011 - M/s.Bharat Business Channel Limited, challenge the levy of entertainment tax under Section 4-I of the Tamil Nadu Entertainments Tax Act, 1939, on the ground that the service provided by the petitioners therein are in the nature of service only and hence, amenable to levy of service tax alone, as falling under Entry 92C List I of VII Schedule to the Constitution of India. Entry 62 List II of Seventh Schedule to the Constitution of India is confined to taxing public entertainment; hence, the said Entry cannot be artificially extended to include private entertainment provided through the DTH services.

3. Referring to the Constituent Assembly discussions, the petitioners in W.P.Nos.25721 and 27070 to 27072 of 2011, contend that Entry 62 List II of VII Schedule to the Constitution of India covers taxing public entertainment only. Thus, even if the Entries in the Lists are to be given a liberal meaning, the tax to be levied under Entry 62 List II of VII Schedule to the Constitution of India on entertainment has its own limitations, as referable to entertainment offered on payment for admission in the public places. DTH, in pith and substance, is a type of activity, amenable to levy under the service tax provisions. In the case of private entertainment, levy of tax, at best, could come only under Entry 97 List I of VII Schedule to the Constitution of India, which fits in with the federal polity.

4. The petitioners contend that in the name of levying entertainment tax, Section 4-I of the Act seeks to levy tax on the service part of providing DTH service. In any event, even if it be construed that the services offered have an element of entertainment in it, as in the case of hotels and in the works contract, there being no specific rule on apportionment of the charges collected with reference to service and entertainment, the Section is unworkable. Referring to the decisions of the other High Courts dealing with similar provisions under the respective Entertainments Tax Acts, the petitioners contend that apart from the issues raised by the petitioners before those High Courts, which were considered and rejected by the other High Courts, the petitioners have also challenged the vires of Section 4-I of the Act as a colourable one, since Section 4-I of the Act, as it stands, seeks to tax the service aspect in DTH services. It is further contended that as a charging Section, Section 4-I of the Act fails to lay down in clear and explicit terms as what the taxable event is. Consequently, the charge under Section 4-I of the Act, fails.

5. The petitioners contend that the amendment brought under the Tamil Nadu Act 25 of 2011, by insertion of Section 4-I of the Act, is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. There is no rational basis for treating DTH as a separate class for differential tax treatment from cable TV, taxed under Section 4-E of the Act.

6. Making particular reference to the decision reported in (2005) 3 SCC 711: [2005] 140 STC 154 (State of West Bengal Vs. Purvi Communication (P) Ltd.), the petitioners further contend that the above decision by the Apex Court was prior to the service tax levy. Hence, the issue herein on the levy of entertainment tax on DTH requires fresh consideration in the light