- (1.) These are appeals under Section 18 of the Telecom Regulatory Authority of India Act, 1997 (for short "the TRAI Act") against the common judgment and order dated 30.08.2007 of the Telecom Disputes Settlement and Appellate Tribunal, New Delhi (for short "the Tribunal") in Petition No. 7 of 2003.
(2.) The relevant facts very briefly are that with the introduction of the National Telecom Policy, 1994 liberalizing the Telecom Sector, telecom licenses were issued to different service providers. The licenses granted to the service providers stipulated a fixed license fee, which was payable by the service providers every year. During the period 1994 to 1999, the licensees defaulted in payment of license fee and made a representation to the Government of India, Ministry of Telecommunications for relief against the high license fee for the survival of the telecom industry. The Government of India considered the representations and after a number of deliberations with the licensees offered a new package, known as the "National Telecom Policy 1999 - Regime" giving an option to the licensees to migrate from fixed license fee to revenue sharing fee. Accordingly, letters dated 22.07.1999 were sent to different licensees offering them a change over to NTP-99 regime, which inter alia stated: "(i) The cut off date for change over to NTP-99 regime will be 01.08.1999. (ii) The licensee will be required to pay one time Entry Fee and License Fee as a percentage share of gross revenue under the license. The Entry Fee chargeable will be the license fee dues payable by existing licensees upto 31.07.1999, calculated upto this date duly adjusted consequent upon notional extension of effective date as in para (ix) below, as per the conditions of existing license. (iii) The license fee as percentage of gross revenue under the license shall be payable w.e.f. 01.08.1999. The Government will take a final decision about the quantum of the revenue share to be charged as license fee after obtaining recommendations of the Telecom Regulatory Authority of India (TRAI). In the meanwhile, Government have decided to fix 15% of the gross revenue of the Licensee as provisional license fee. The gross revenue for this purpose would be the total revenue of the licensee company excluding the PSTN related call charges paid to DOT/MTNL and service tax collected by the licensee on behalf of the Government from their subscribers. On receipt of TRAI's recommendation and Government's final decision, final adjustment of provisional dues will be effected depending upon the percentage of revenue share and the definition of revenue for this purpose as may be finally decided."
(3.) After receipt of the letter dated 22.07.1999, some of the service providers applied and took new licenses which provided that the licensee will have to pay a certain percentage of the Gross Revenue as license fee annually. After the Government of India, Ministry of Telecommunications finally took the final decision on the definition of Adjusted Gross Revenue, the license agreement was amended and signed by the licensees and the amended license agreement was effective from 01.08.1999. Clause 19 of the amended license agreement, which defines Adjusted Gross Revenue, is extracted hereinbelow: "19. Definition of 'Adjusted Gross Revenue': 19.1 Gross Revenue: The Gross Revenue shall be inclusive of installation charges, late fees, sale proceeds of handsets [or any other terminal equipment etc.', revenue on account of interest, dividend, value added services, supplementary services, access or interconnection charges, roaming charges, revenue from permissible sharing of infrastructure and any other miscellaneous revenue, without any setoff for related item of expense, etc. 19.2 For the purpose of arriving at the 'Adjusted Gross Revenue [AGR]' the following shall be excluded from the Gross Revenue to arrive at the AGR: I. PSTN related call charges [Access Charges] actually paid to other eligible/ entitled telecommunication service providers within India; II. Roaming revenues actually passed on to other eligible/ entitled telecommunication service providers and; III. Service Tax on provision of service and Sales Tax actually paid to the Government if gross revenue had included as component of Sales Tax and Service Tax." ;