2008 (12) TMI 143 - AT - Service Tax

The Hon ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. observed that what a Sim Card represents is a question of fact. It is also observed that if the Sim Card is not sold by the assessee to the subscribers but is merely part of services rendered by the service providers, then a Sim Card cannot be charged separately to sales tax. In the present case, we find that the adjudicating authority had not disputed that Spice Communication Pvt. Ltd. paid the service tax on the activation and there is no dispute about the sale of Sim cards. It appears that Sim Card would be separate object of sale. Notification No. 13/03 (supra) extended the exemption benefit to sale of goods. Hence, the Commissioner (Appeals) has rightly set aside the demand of tax for the period from 1.7.03 to 30.6.04

Summary

Issues:
Interpretation of Notification No. 13/2003-ST regarding exemption for commission agents in the sale of goods, whether the sale of sim cards constitutes a sale of goods or services, liability of service tax on commission agents, application of Notification No. 13/03 to the sale of sim cards, and the correctness of the Commissioner (Appeals) decision.

Analysis:
The appeal was filed by the Revenue against the order-in-appeal passed by the Commissioner (Appeals), Jalandhar, concerning the demand of tax and penalties on commission received by the respondents from selling sim cards on behalf of M/s. Spice Communication Pvt. Ltd. The dispute revolved around whether the sale of sim cards constituted a sale of goods or services and the applicability of Notification No. 13/2003-ST, which exempted business auxiliary services provided by commission agents based on the quantum of sale or purchase of goods.

The Revenue contended that the sale of sim cards was a service incidental to the activation device for cellular service and not a sale of goods, citing a Supreme Court decision. On the other hand, the respondents argued that they were within the purview of the notification as they were selling sim cards purchased from M/s. Spice Communication Ltd. and had been paying tax on the commission post-amendment of the notification in 2004. They emphasized that Spice Communication Ltd. paid tax on activation charges.

The Tribunal analyzed the facts and found that the original authority erred in considering the respondent as a commission agent for services rather than goods. It noted that Spice Communication Pvt. Ltd. had paid service tax on activation charges for sim cards, and the respondents sold sim cards on behalf of another person, making them eligible for the exemption under the notification covering the sale of goods.

Referring to a Supreme Court judgment, the Tribunal highlighted that if a sim card is not sold separately but is part of the services provided by the service provider, it cannot be charged sales tax separately. Given that Spice Communication Pvt. Ltd. paid service tax on activation and there was no dispute regarding the sale of sim cards, the Tribunal concluded that the sim card constituted a separate object of sale, falling under the exemption benefit of the notification for the sale of goods. Therefore, the Commissioner (Appeals) decision to set aside the demand of tax for the specified period was upheld, and the Revenue's appeal was rejected.

In conclusion, the Tribunal found no justification to interfere with the Commissioner (Appeals) order, emphasizing the distinction between the sale of goods and services in the context of selling sim cards and the application of relevant tax notifications.