2007 (6) TMI 107 - AT - Service Tax

Valuation(Service tax) - Revenue contended that appellant is liable to pay service tax on MRP and accordingly demand for differential duty along with penalty - Held that revenue contention was not correct and set aside demand

Summary

Issues:
1. Differential service tax demand and penalties imposed on the assessee.
2. Appeal filed by the Department against the dropping of a penalty.

Analysis:
1. The assessee's appeal pertains to a demand for differential service tax of Rs. 7,82,385 for a specific period and penalties imposed under Sections 76 and 77 of the Finance Act, 1994. The Revenue's appeal, on the other hand, challenges the dropping of a penalty proposed in the show-cause notice and imposed by the original authority under Section 78 of the Act.

2. The appellants, registered as telephone service providers, sold pre-paid SIM cards to dealers below the MRP, who then sold them to subscribers at MRP. The Department contended that service tax should be levied on the MRP as the gross amount under Section 67 of the Finance Act, 1994. The original authority confirmed the demand for differential tax and penalties, which was partially upheld by the Commissioner (Appeals). The current appeals challenge the Commissioner's decision.

3. The assessee argued that they were only liable to pay service tax on the consideration received for selling SIM cards to dealers, citing Section 67 of the Act. They relied on a Tribunal decision that stated only the actual amount received by the service provider constitutes the taxable service value. The Tribunal noted that the Commissioner misinterpreted the relevant section and clarified that the taxable service value is the gross amount charged by the service provider, which, in this case, was the amount received from dealers. As service tax was paid on this amount, there was no additional liability.

4. Despite the service ultimately reaching subscribers, the law dictates that service tax is levied based on the gross amount charged by the service provider. As the appellants were not required to pay any differential service tax, they were also not subject to penalties. Consequently, the assessee's appeal was allowed, and the Revenue's appeal for imposing penalties was dismissed.