2008 (4) TMI 287 - AT - Service Tax

Cellular telephone services valuation - demand of service tax is on the value of SIM card which was not included in the gross value of telephone services held that if SIM cards have been charged to sales tax, the cost of the SIM card would not be included for the purpose of levy of service tax - therefore a prima facie case has been made out by the appellants for waiver of pre-deposit stay granted

Summary

Issues:
1. Demand of service tax on the value of SIM card not included in the gross value of telephone services.
2. Challenge to the Commissioner's order based on principles of natural justice.
3. Whether SIM cards are goods sold for a price and if sales tax has been paid.
4. Interpretation of the judgment in the BSNL case regarding service tax on SIM cards.
5. Relevance and consistency of previous judgments on the taxation of SIM cards.

Analysis:
1. The case involves a stay application against a demand for service tax on the value of SIM cards not included in the gross value of telephone services. The appellants are in the business of providing cellular telephone services in Gujarat Circle and are paying service tax under the category of 'telephone service'. The demand is based on a circular and the judgment in the BSNL case, which held that the amount charged for SIM cards would attract service tax if it is part of the telephone service.

2. The appellants challenged the Commissioner's order on the grounds of non-observance of principles of natural justice. They argued that SIM cards are goods sold for a price, and sales tax has been paid on them. They contended that the view of SIM cards as an activating device is not supported by sustainable evidence. The appellants relied on various judgments, including those of the Tribunal and the Hon'ble Supreme Court, to support their case.

3. The Tribunal considered the judgments cited by the appellants, which consistently held that if SIM cards are subject to sales tax, their cost should not be included for the purpose of levying service tax. Based on this reasoning, the Tribunal found a prima facie case for waiving the pre-deposit requirement. Consequently, the Tribunal waived the pre-deposit of duty and penalties imposed on the appellants and stayed the recovery of the same.

This detailed analysis of the judgment provides insights into the issues raised, the arguments presented, and the Tribunal's decision based on legal principles and precedents.