2012 (8) TMI 565 - AT - Service Tax

Extended period of limitation - Demand of duty non-incaution of value of the sale of SIM card in gross taxable value Held that - Since the earlier decisions of the Tribunal were in favour of the assessee, it has to be held that there was bona fide doubt about the non inclusion of the cost of SIM card in the value of services. If that be so, no mala fide can be attributable to the appellant so as to invoke the extended period of limitation - demand raised beyond the period of limitation is barred by limitation - no penalty is imposable upon the appellants

Summary

Issues:
- Whether the value of SIM cards is required to be included in the value of services provided by the appellants.
- Whether the extended period of limitation is available to the Revenue for confirming the demand of duty.

Analysis:
1. Issue 1 - Inclusion of SIM Card Value in Service Value:
- The appellants, providers of cellular telephone services, disputed the inclusion of SIM card value in the service value.
- The dispute was settled by a recent decision in the same appellants' case, where the Apex Court held that SIM card value forms part of activation charges and must be included in the taxable service value.
- The Tribunal's earlier decision in favor of the appellants was reversed by the Kerala High Court, leading to the current dispute.
- The appellants argued that the issue was bona fide, as supported by various tribunal decisions and observations by the Bombay High Court.
- The Supreme Court's precedent emphasized that mere omission or incorrect information does not constitute suppression, affecting the imposition of penalties.

2. Issue 2 - Extended Period of Limitation:
- The Revenue invoked the extended period of limitation based on the argument of suppression due to the appellants not including SIM card value in their taxable value.
- The Tribunal noted that the earlier decisions favoring the appellants indicated a bona fide doubt regarding the inclusion of SIM card value, negating any mala fide intent.
- Precedents from the Supreme Court highlighted that a bona fide belief due to conflicting High Court views prevents the invocation of extended limitation periods.
- The Tribunal concluded that the demand raised beyond the limitation period was barred by limitation, directing the re-quantification of demands within the limitation period and setting aside the penalty based on the Kerala High Court's decision.

In summary, the judgment resolved the issues of including SIM card value in service value and the availability of the extended period of limitation in favor of the appellants. The decision emphasized the importance of bona fide doubts, conflicting views, and lack of mala fide intent in determining the imposition of penalties and extended limitation periods.