2013 (6) TMI 340 - AT - Service Tax

Levy of ST on sale of SIM Cards of BSNL - extended period of limitation - held that - activity of purchase and sale of SIM card belonging to BSNL where BSNL has discharged the service tax on the full value of the SIM cards, does not amount to providing business auxiliary services and confirmation of demand on the distributors for the second time is not called for. - Demand set aside - Decided in favor of assessee.

Summary

Issues:
Confirmation of Service Tax on sale of SIM cards as Business Auxiliary services, applicability of earlier Tribunal decisions, interpretation of Supreme Court judgment on SIM card value in activation charges.

Confirmation of Service Tax on sale of SIM cards as Business Auxiliary services:
The appellant was engaged in the purchase and sale of SIM cards of BSNL. The issue arose when proceedings were initiated against the appellant for confirmation of Service Tax on the grounds that selling SIM cards constituted Business Auxiliary services. The appellant argued that they were not reselling BSNL SIM cards on a commission basis but were purchasing them outright from BSNL and then selling them in the market. They highlighted that they became the owners of the SIM cards by depositing the entire value in advance with BSNL. The appellant contended that since BSNL had already discharged service tax on the full value of the SIM cards, demanding tax from them would amount to double taxation. Despite these arguments, the lower authorities confirmed the demand and imposed penalties on the appellants. The Commissioner (Appeals) referred to earlier Tribunal decisions but did not follow them, citing a Supreme Court judgment in a different context. However, the Tribunal, after analyzing the Supreme Court judgment and relevant case law, held that the activity of purchasing and selling SIM cards where service tax had already been paid by BSNL did not amount to providing Business Auxiliary services. Consequently, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellants.

Applicability of earlier Tribunal decisions:
The Commissioner (Appeals) had disregarded earlier Tribunal decisions on a similar issue, citing a Supreme Court judgment in a different context. The Tribunal, after a thorough analysis of the Supreme Court judgment and relevant case law, concluded that following the decision of the Commissioner (Appeals) over the Tribunal's precedent on the same issue was not appropriate. The Tribunal referred to a recent decision in another case where it was held that the purchase and sale of SIM cards, with service tax already discharged by BSNL, did not constitute Business Auxiliary services. By following this recent decision, the Tribunal set aside the impugned order and ruled in favor of the appellants. This highlights the importance of consistency and coherence in legal interpretations across different levels of adjudication.

Interpretation of Supreme Court judgment on SIM card value in activation charges:
The Tribunal clarified that the issue before the Supreme Court in a previous case was distinct from the matter at hand, which involved the purchase and sale of SIM cards where service tax had already been paid by BSNL. The Tribunal emphasized that the Supreme Court judgment did not directly address the specific issue in the present case. Therefore, the Commissioner (Appeals) erred in relying on the Supreme Court judgment to disregard the Tribunal's precedent. By distinguishing between the issues in the Supreme Court case and the present case, the Tribunal reinforced the importance of contextual and precise legal interpretations to ensure fair and accurate decisions.