1998 (7) TMI 1 - Commissioner - Service Tax

Service Tax (1) Telegraph authority towards SIM card (2) Amount received by company (3) Demand and Limitation (4) Service tax is new concept (5) Penalty not imposable

Summary

Issues Involved:
1. Applicability of service tax on SIM cards.
2. Inclusion of cash cards and cash coupons in taxable service value.
3. Determination of subscriber status for service tax purposes.
4. Assessment of service tax liability and disclosure requirements.
5. Penalty imposition for non-disclosure and non-payment of service tax.

Issue-wise Detailed Analysis:

1. Applicability of Service Tax on SIM Cards:
The company was engaged in providing cellular telephone services and was registered under the service tax law. It was revealed that the company was collecting activation charges in the form of the price of SIM cards but was neither collecting nor paying service tax on these charges. The judgment held that the SIM card is an essential activation device for obtaining a telephone connection and does not have significant intrinsic value. Therefore, the charges received by the company towards SIM cards were deemed as processing charges for activating the cellular phone and formed part of the taxable value for the purpose of service tax.

2. Inclusion of Cash Cards and Cash Coupons in Taxable Service Value:
The company supplied cash cards and cash coupons to distributors, some of which were provided free of cost. These items were sold to subscribers, and no service tax was collected on their value. The judgment concluded that cash cards, being another variety of SIM cards pre-activated with specific values, and cash coupons, which are used to recharge cash cards, should be included in the taxable value. The amounts received by the company for these items, either directly or through distributors, formed part of the taxable value for service tax purposes.

3. Determination of Subscriber Status for Service Tax Purposes:
The company argued that a person is not a subscriber before receiving a telephone connection, and thus, amounts charged before this status should not be included in the taxable value. However, the judgment disagreed, stating that a person desirous of having a cellular connection gets the status of a subscriber even at the time of application for such a connection. Therefore, the gross total amount received by the company from subscribers towards SIM cards was included in the taxable value.

4. Assessment of Service Tax Liability and Disclosure Requirements:
The company failed to include the value of SIM cards, cash cards, and cash coupons in their quarterly ST-3 returns and did not disclose these figures to the department. This non-disclosure led to the evasion of service tax amounting to Rs. 53,41,647/-. The judgment held that the company failed to disclose wholly and truly all material facts necessary for the assessment of their ST-3 returns, invoking the provisions of Section 73(a) of the Finance Act, 1994.

5. Penalty Imposition for Non-disclosure and Non-payment of Service Tax:
Despite the non-disclosure and evasion of service tax, the judgment took a lenient view considering the initial confusion and lack of understanding of the new service tax concept. Therefore, no penalty was imposed on the company. However, the service tax amount of Rs. 53,41,647/- was confirmed, along with the interest accrued under Section 75 of the Finance Act, 1994.

Order:
The judgment confirmed the service tax liability of Rs. 53,41,647/- and the interest accrued on this amount under Section 75 of the Finance Act, 1994. No penalty was imposed on the company due to the initial confusion surrounding the new service tax concept.