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2022 (8) TMI 104 - AT - Service TaxBusiness Auxiliary Service - sale of SIM card for a consideration - Revenue of the view that the appellant was providing taxable service under the category of Business Auxiliary Service against the consideration of 4.5% of the sale value - inclusion of trade discount in the assessable value - HELD THAT - The issue involved in this appeal is squarely covered in favour of the appellant by various decisions of this Tribunal. The South Zonal Bench of this Tribunal in the case of R. VENKATARAMANAN VERSUS COMMISSIONER OF CENTRAL EXCISE, TRICHY 2008 (9) TMI 46 - CESTAT, CHENNAI where it was held that the entire consideration charged from the customers is subjected to ST which is paid by the BSNL, therefore, the finding that the appellant is promoting the business of sale or service of BSNL is misconceived. There are no merits in the impugned order and the same is set aside - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Classification of the appellant's activity under "Business Auxiliary Service." 2. Applicability of service tax on the commission earned by the appellant. 3. Double taxation concerns. 4. Consistency with previous tribunal decisions. Issue-wise Detailed Analysis: 1. Classification of the appellant's activity under "Business Auxiliary Service": The appellant, a distributor of SIM cards for BSNL, was classified by the Revenue under "Business Auxiliary Service" due to the trade discount of 4.5% received from BSNL. The tribunal referred to previous decisions, particularly the South Zonal Bench's decision in R.Venkataramanan Vs. Commissioner of Central Excise, Trichy, which held that distributors of SIM cards are not providing a taxable service under "Business Auxiliary Service" but are engaged in the sale of goods. The tribunal found that the appellant was merely selling SIM cards and not promoting BSNL's business, thus not falling under "Business Auxiliary Service." 2. Applicability of service tax on the commission earned by the appellant: The tribunal examined whether the commission or discount received by the appellant should be subject to service tax. It was noted that BSNL already paid service tax on the entire face value of the SIM cards, which included the discount/commission given to the distributors. The tribunal referenced multiple decisions, including South East Corporation v. CCE & ST, Cochin, and Chetan Traders Vs. Commissioner of Central Excise, Jaipur, which consistently ruled that the commission received by distributors is not separately taxable as it is part of the sale of goods. 3. Double taxation concerns: The tribunal addressed concerns about double taxation, emphasizing that the service tax on the full value of the SIM cards had already been paid by BSNL. The tribunal cited the Bangalore Bench's decision in Karakkattu Communications Vs. Commissioner of Central Excise, Cochin, which clarified that taxing the commission element separately would result in double taxation, which is against recognized principles of taxation. 4. Consistency with previous tribunal decisions: The tribunal's decision was strongly influenced by consistency with previous rulings. It referred to several cases, including Goyal Automobiles Vs. Commissioner of Central Excise, Chandigarh II, and G.R. Movers Vs. Commissioner of Central Excise, Lucknow, where it was established that the sale of SIM cards by distributors does not constitute a taxable service under "Business Auxiliary Service." The tribunal also noted the Hon'ble Madras High Court's decision, which upheld similar tribunal rulings, reinforcing the position that the appellant's activities were not taxable under the disputed service category. Conclusion: The tribunal concluded that the appellant's activities did not fall under "Business Auxiliary Service" and that the commission received was not subject to additional service tax, as BSNL had already paid tax on the full value of the SIM cards. The impugned order was set aside, and the appeal was allowed with consequential relief. The miscellaneous application for additional evidence was dismissed as infructuous.
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