2008 (8) TMI 107 - AT - Service Tax

Purchase & sales of SIM cards/rechargeable coupons of M/s. Aircel Ltd. assessee paid tax under head Business Auxiliary Service under protest and took credit of tax paid by M/s. Aircel Ltd. - Commissioner (Appeals) while confirming demand has not chosen to decide the issue of liability to service tax, but has dealt with only one issue i.e. whether the service tax credit availed and utilised by them is legal - since the issue is at the root of the dispute, appeal is allowed by way of remand

Summary

Issues:
1. Liability to service tax
2. Eligibility of credit of service tax paid by M/s. Aircel Digilink India Ltd.

Analysis:

Issue 1: Liability to service tax
The appellants were engaged in the purchase and sale of SIM cards/rechargeable coupons and had paid service tax under the heading 'Telephone services' by M/s. Aircel Digilink India Ltd. The department directed the appellants to register as a service tax provider under the head 'Business Auxiliary Service'. The appellants claimed to have registered themselves and paid service tax under protest. The original authority demanded service tax amounting to Rs. 7,47,575 for a specific period and imposed a penalty of Rs. 1,71,899. The Commissioner (Appeals) did not address the issue of liability to service tax, focusing instead on the admissibility of Service Tax Credit. The Technical Member found that the original authority had decided the issue of taxability, which was pivotal to the dispute. Therefore, the matter was remanded to the Commissioner (Appeals) for fresh consideration after providing a reasonable opportunity of hearing to the appellant.

Issue 2: Eligibility of credit of service tax paid by M/s. Aircel Digilink India Ltd.
The appellants had taken credit of the service tax paid by M/s. Aircel Digilink India Ltd. The original authority and the Commissioner (Appeals) had differing approaches in their decisions. The Commissioner (Appeals) focused on the availability of service tax credit to the appellants based on the show-cause notices and the registration status of the appellants as service providers of business auxiliary service. The Technical Member directed that the issue of eligibility of credit should also be considered by the Commissioner (Appeals) upon remand along with the issue of liability to service tax, emphasizing the importance of a comprehensive review.

In conclusion, the appeal was allowed by way of remand, and the stay petition was disposed of. The Technical Member's decision highlighted the need for a thorough examination of both the liability to service tax and the eligibility of credit issues by the Commissioner (Appeals) to ensure a fair and comprehensive resolution of the dispute.