2011 (2) TMI 658 - AT - Service Tax

Stay of Demand - Sale of sim card - in this case, this fact is not disputed that the applicants have discharged sales tax on the sale of SIM cards. Further, he relied on the case of Hutchison Max Telecom Pvt. Ltd. v. CCE Mumbai reported in 2008 (2008 -TMI - 30585 - CESTAT NEW DELHI) wherein it was held that if sales tax has been paid on SIM cards, no service tax liability is leviable for sale of SIM cards - Stay granted.

Summary

Issues:
1. Confirmation of demand on the sale of SIM cards by the adjudicating authority.
2. Comparison of the facts of the present case with the case law of Idea Mobile Communication Ltd.
3. Interpretation of the decision in Hutchison Max Telecom Pvt. Ltd. v. CCE Mumbai regarding service tax liability on SIM card sales.

Analysis:
The judgment delivered by the Appellate Tribunal CESTAT, New Delhi dealt with the confirmation of demand on the sale of SIM cards by the adjudicating authority. The Tribunal noted that the adjudicating authority had relied on a decision of the Kerala High Court in the case of CCE, Cochin v. Idea Mobile Communication Ltd. The Tribunal considered the arguments presented by the Advocate for the applicants, highlighting the distinction in the facts of the present case from the case of Idea Mobile Communication Ltd. It was emphasized that in the present case, sales tax had been discharged on the sale of SIM cards, unlike the situation in Idea Mobile Communication Ltd. The Advocate also referred to the case of Hutchison Max Telecom Pvt. Ltd. v. CCE Mumbai, where it was held that if sales tax had been paid on SIM cards, no service tax liability would be applicable.

Upon thorough consideration of the case laws cited by the Advocate, the Tribunal concluded that the facts in the present case were distinguishable from the case of Idea Mobile Communication Ltd. The Tribunal aligned with the decision in Hutchison Max Telecom Pvt. Ltd., stating that if SIM cards were sold with sales tax or VAT paid on them, no service tax liability would arise. The Tribunal found merit in the arguments put forth by the Advocate, indicating a strong case in favor of the applicants. Consequently, the Tribunal decided to waive the recovery of the entire amount of service tax, interest, and penalty. Additionally, the recovery was stayed during the pendency of the appeal, providing relief to the applicants based on the legal principles established in the referenced cases.