2014 (4) TMI 1039 - AT - Service Tax

Waiver of pre deposit - Mobile telephone services - Held that - Prima facie, there is infraction of law laid down. However, it is prima facie clear that the services received by the applicant from other service providers to extend roaming facility to applicant s subscribers is an input service for the applicant. Thus the advocate for the applicant has been able to demonstrate that the facts of his case has not resulted in any revenue loss and he has also explained that this happened only for a brief period. Therefore, at this stage, we consider it proper to grant waiver of pre-deposit of dues for admission of appeal. It is so ordered and there shall be stay on collection of such dues arising from the impugned order during pendency of the appeal - Stay granted.

Summary

Issues: Calculation of service tax liability on roaming services provided by the applicant to other mobile telephone operators.

Analysis:
1. Factual Background: The applicant, a mobile telephone service provider, entered into agreements with other service providers for reciprocal roaming services. The department contended that the applicant should have paid service tax on the gross value of services provided to other operators for roaming facilities.

2. Contentions of the Applicant: The applicant argued that they had mistakenly paid service tax on the net value received from partners for roaming services. They claimed that the services received from other operators were essential input services for them to provide services to their subscribers. The applicant asserted that if they had paid tax on the full value, they could have claimed Cenvat credit, making the situation revenue-neutral.

3. Revenue's Argument: The Revenue contended that service tax should have been paid on the gross value of services provided by the applicant to other operators. They questioned the eligibility of the applicant for service tax credit on services provided by partners.

4. Tribunal's Decision: The Tribunal acknowledged the prima facie violation of the law but recognized that the services received from other providers were indeed input services for the applicant. The Tribunal accepted the applicant's explanation that the error was unintentional and did not result in any revenue loss. Consequently, the Tribunal granted a waiver of pre-deposit for the appeal and ordered a stay on the collection of dues during the appeal's pendency.

In conclusion, the Tribunal granted relief to the applicant by waiving the pre-deposit requirement, considering the unintentional nature of the error and the absence of revenue loss. The decision highlighted the importance of correctly determining service tax liability on services provided to other operators, emphasizing the significance of input services in such transactions.