2021 (3) TMI 1206 - HC - Service Tax

Levy of Service tax - sale of starter packs with prepaid voucher - margin earned by the petitioners during the sale process - HELD THAT - The issue on hand is squarely covered by the decision of the Hon ble Division Bench in THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. BHARAT CELL 2015 (10) TMI 1111 - MADRAS HIGH COURT where it was held that Though the correct procedure for discharge of the service tax liability by the two parties is that the distributors raise bills for commissions that is due to them along with service tax and BSNL takes Cenvat credit of tax paid by distributors for discharging liability on the telecommunication service provided by BSNL such procedure does not result in extra realization of Revenue. Petition allowed.

Summary

Issues:
1. Whether service tax can be levied on the margin earned by the petitioners during the sale process?
2. Whether the impugned orders rejecting the rectification petitions are valid?
3. Whether the decision of the Hon'ble Division Bench supports the petitioners' case?

Analysis:

Issue 1:
The writ petitioners, who are distributors of a telecom company, sold starter packs with prepaid vouchers. The dispute arose when the respondents sought to levy service tax on the margin earned by the petitioners during the sale process, despite the principal already remitting service tax on MRP. The petitioners contended that the issue had been settled by Tribunal decisions. However, their stand was rejected, leading to the impugned orders-in-original. The petitioners filed rectification petitions, which were also dismissed, prompting them to file writ petitions challenging the impugned orders.

Issue 2:
The respondents opposed the writ prayers by filing a common counter affidavit. The learned Standing counsel urged the Court to uphold the impugned orders. However, the Court noted that the issue was squarely covered by a decision of the Hon'ble Division Bench, which emphasized the nature of the transactions between distributors and the principal telecom company. The Court referred to the decision's analysis, which highlighted the unique nature of the services provided by distributors of SIM cards or recharge coupon vouchers, leading to the exemption from service tax under a specific notification.

Issue 3:
Relying on the decision of the Hon'ble Division Bench, the Court quashed the impugned orders in the writ petitions, thereby ruling in favor of the petitioners. The Court observed that the special nature of the activities and the clear verification of the full taxable value of services provided supported the petitioners' case. The Court emphasized that a contrary approach would result in discrepancies in the value taxed for mobile telecom services. Consequently, the Court allowed the writ petitions, with no costs imposed, and closed the connected miscellaneous petitions.

In conclusion, the High Court of Madras ruled in favor of the petitioners, distributors of a telecom company, by quashing the impugned orders that sought to levy service tax on the margin earned during the sale process. The decision of the Hon'ble Division Bench supported the petitioners' case, emphasizing the unique nature of the services provided by distributors and the exemption from service tax under a specific notification.