2014 (9) TMI 460 - HC - Service Tax

Levy of service tax on SIM Cards - tribunal held that where service provider voluntarily paid sales tax on the value of SIM cards no service tax would be levied - Telephone services - extended period of limitation - Held that - In view of decision of Supreme Court in the case of Idea Mobile Communication 2011 (8) TMI 3 - SUPREME COURT OF INDIA , the entire value of the transaction i.e., value of activation charges plus value of SIM cards could be subjected only to Service Tax and not to Sales tax. Although the decision of the Apex Court practically concludes the issue therein, nevertheless, the appellant raised a plea of limitation levying demand on the assessee. Since it is pure question of fact, we feel that there could be no inhibition to confirm the demand order of the Customs, Excise and Service Tax Appellate Tribunal. - Decided against the revenue.

Summary

Issues:
1. Whether Service Tax is leviable on the value of SIM cards under Chapter V of Finance Act, 1994 if the service provider voluntarily paid sales tax on the value of SIM cards.
2. Whether Service Tax is leviable under the category of Telephone services on the value of SIM cards under Chapter V of Finance Act, 1994.
3. Whether the service provider can raise objections during de novo adjudication proceedings if not raised before lower authorities.

Analysis:
Issue 1:
The Revenue challenged the order of the Customs, Excise and Service Tax Appellate Tribunal, contending that Service Tax is leviable on SIM cards even if sales tax has been paid voluntarily. The assessee argued that if sales tax was paid on SIM cards, Service Tax should not be levied, citing relevant legal precedents. The Tribunal directed the original authority to determine if sales tax was paid on SIM cards during the disputed period, stating that if sales tax was paid, Service Tax would not be applicable. The Tribunal set aside previous orders and remanded the matter for fresh consideration.

Issue 2:
The Revenue relied on a Supreme Court judgment stating that SIM cards are part of services provided, and charges for SIM cards are considered processing charges for activating cellular phones. The Supreme Court held that the value of SIM cards is included in activation charges, making the entire transaction subject to Service Tax, not sales tax. The Revenue argued that the Tribunal's decision needed to be overturned based on this judgment.

Issue 3:
The appellant raised a plea of limitation regarding the demand on the assessee, which was considered a pure question of fact. The Court found no reason to dispute the demand order of the Tribunal based on the limitation issue. The Court directed the adjudicating authority to assess the levy of Service Tax in line with the Supreme Court's judgment regarding the value of SIM cards and activation charges.

In conclusion, the Civil Miscellaneous Appeal was disposed of without costs, affirming the applicability of Service Tax on SIM cards and activation charges based on the Supreme Court's interpretation.