2004 (8) TMI 4 - AT - Service Tax

Service Tax Sale of SIM card by mobile phone service provider (1) Demand (2) Limitation (3) Service being not taxable appeal under bona fide belief rejected

Summary

Issues:
1. Challenge to the impugned order confirming service tax on the sale of SIM cards.
2. Whether the sale of SIM cards by the appellants to subscribers falls within the definition of taxable service.
3. Applicability of Notification No. 12/2003-ST.
4. Argument regarding the limitation period for the demand of service tax.

Analysis:
1. The appellants challenged the order confirming a service tax demand of Rs. 3,28,250 on the sale of SIM cards, along with interest and penalty under Section 76 of the Act. The issue revolved around whether the sale of SIM cards by the appellants, who provide cellular telephone service, constitutes a taxable service.

2. The Tribunal referred to a previous judgment by the High Court of Kerala, which held that selling SIM cards to subscribers is part of the service provided by the appellants and falls within the definition of taxable service. The Tribunal noted that a notification exempting service tax on materials sold by service providers to recipients came into force after the period in question, thus not applicable to the present case.

3. The appellants argued that the demand was time-barred, citing the issuance of the show cause notice after the period in question. However, the Tribunal found that the appellants had suppressed material facts from the department, including non-disclosure of tax payment details in their returns. The Tribunal rejected the argument that the appellants believed the service was not taxable, emphasizing the lack of evidence showing efforts to clarify tax liability with authorities.

4. The Tribunal upheld the order-in-appeal, stating that there was no illegality in confirming the service tax demand. The appeal was rejected based on the finding that the appellants had evaded service tax by not disclosing relevant information to the tax authorities, thus dismissing the limitation argument and upholding the tax liability on the sale of SIM cards to subscribers.