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2017 (9) TMI 509 - HC - Service TaxBusiness Auxiliary Service - Levy of ST on sale of SIM Cards of BSNL - extended period of limitation - Held that - similar issue decided in the case of M/s. Daya Shankar Kailash Chand Versus CCE& ST, Lucknow 2013 (6) TMI 340 - CESTAT NEW DELHI , where it was 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 - appeal dismissed - decided against Revenue.
Issues:
1. Interpretation of "Business Auxiliary Service" under Section 65(19) of the Finance Act, 1994. 2. Taxability of SIM card value in relation to activation charges. 3. Double taxation and distinction between "Telecommunication Service" and "Business Auxiliary Service." 4. Acceptance of Department's plea by the CESTAT. 5. Consistency in judgments regarding the provision of Business Auxiliary Service. Analysis: 1. The appeal raised questions regarding the demand of Service Tax under the category of "Business Auxiliary Service" as defined in Section 65(19) of the Finance Act, 1994. The appellant contested the imposition of penalties and interest, arguing that the services rendered fell within the scope of the defined service. 2. The issue of taxability concerning the value of SIM cards in relation to activation charges was deliberated. Reference was made to a Supreme Court judgment in Idea Mobile Communication Ltd., emphasizing the inclusion of SIM card value in the taxable service amount. The CESTAT's decision to drop the demand was challenged based on this interpretation. 3. The appellant contended that the demand for Service Tax under "Business Auxiliary Service" constituted double taxation as Service Tax had already been paid on the full value of SIM cards under "Telecommunication Service." The distinction between the two services was crucial in determining the tax liability. 4. The CESTAT's rejection of the Department's plea was a focal point of discussion. The appellant questioned the justification behind the rejection, citing detailed reasons provided by the CESTAT in a previous case and referring to relevant Board Circulars. The issue of tax payment by a third party on the taxable value of a service was a key argument. 5. The judgment highlighted the consistency in decisions across various cases, including those by the Tribunal in New Delhi and a Division Bench of the High Court. The judgments emphasized that the purchase and sale of SIM cards, where Service Tax had been paid by the telecom company, did not amount to providing Business Auxiliary Service. The court upheld these decisions, ensuring uniformity in interpreting the tax liability in similar cases. In conclusion, the High Court dismissed the appeal, affirming the decisions of the lower authorities and maintaining consistency with previous judgments on the taxability of services and the interpretation of relevant provisions under the Finance Act, 1994.
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