2007 (3) TMI 141 - AT - Service Tax

Penalty (Service tax) - Alleged that appellant paid the service tax after the due date and accordingly liable to penalty - Held that allegation is not sustained and penalty amount set aside

Summary

Issues:
1. Whether a SIM card should be treated as 'goods' or 'service' for the purpose of Service tax liability.

Detailed Analysis:
The appeal was filed by a company engaged in providing cellular phone services, challenging a demand for Service tax on the value of SIM cards sold to subscribers. The company contended that Service tax should be paid only on activation charges, not on the price of the SIM card itself. The department argued that the cost of the SIM card is an essential part of processing charges for activating cellular phones and should be included in the taxable amount. The primary issue was whether a SIM card should be considered 'goods' or 'service' for tax purposes.

The company presented documents indicating that Sales Tax was paid on the price of SIM cards during the disputed period. They relied on a Supreme Court judgment in a similar case involving the classification of SIM cards under the Kerala General Sales Tax Act. The Supreme Court in that case held that if the SIM card was not sold separately but was part of the service provided, it could not be charged sales tax separately. The intention of the parties regarding the sale of the SIM card was considered crucial in determining its classification as 'goods' or 'service'.

The Tribunal found that the question of whether a SIM card should be treated as 'goods' or 'service' was similar under both Sales Tax and Service tax laws. The Tribunal set aside the previous order and allowed the appeal by way of remand, directing the original authority to re-examine whether the SIM cards supplied by the company were 'goods' or part of a taxable service. The decision was to be made in light of the guidelines laid down by the Supreme Court in the referenced case. The company was granted an opportunity to present evidence and arguments during the fresh examination by the original authority.