2016 (4) TMI 894 - AT - Service Tax

Quantum of Service tax liability - Eligibility for cum-tax benefit - Appellant claiming benefit treating the amount realized by them as inclusive of tax - Held that - the appellant is eligible for cum-tax benefit and therefore service tax liability and interest thereof needs to be recalculated by the lower authority in view of the various decisions of Tribunal. Therefore, for limited purpose of re-quantification of the service tax liability, the matter is remanded to the adjudicating authority. Imposition of penalty - taxability of the sim cards and value to be considered for such tax - Held that - the appellant could have entertained a bonafide belief as to the sale of sim cards is not a taxable activity. Therefore, in view of the decision of this bench in the case of Bharti Airtel Ltd., the penalties are set aside by invoking the provisions of Section 80 of the Finance Act, 1994. - Appeal disposed of

Summary

Issues involved:
1. Taxability of SIM card sales under Section 65(105)(zzzx) of the Finance Act, 1994.
2. Application of cum-tax benefit in determining service tax liability.
3. Recalculation of service tax liability and interest.
4. Imposition of penalties on the appellant.

Analysis:

Issue 1: Taxability of SIM card sales
The appeal questioned whether the value of SIM cards sold to mobile subscribers should be included in taxable service under Section 65(105)(zzzx) of the Finance Act, 1994. The appellant sold SIM cards to franchisees, activated them for subscribers, and paid sales tax on activation charges but did not discharge service tax liability on the gross value received. The Tribunal referred to a previous case involving Idea Mobile Communication Ltd., where a similar issue was decided against the appellant, establishing a precedent.

Issue 2: Application of cum-tax benefit
The appellant claimed cum-tax benefit, treating the amount realized as inclusive of tax. Citing a case involving Commissioner of Central Excise & Customs, Patna vs. Advantage Media Consultant, the Tribunal supported the appellant's position. It was held that when no tax is collected separately, the gross amount should be considered inclusive of service tax, as legislated in Section 67(2) of the Finance Act, 1994. The Tribunal concluded that the appellant was eligible for the cum-tax benefit, necessitating a recalculation of service tax liability and interest.

Issue 3: Recalculation of service tax liability and interest
The Tribunal remanded the matter to the adjudicating authority for re-quantification of the service tax liability. The appellant was directed to discharge the recalculated service tax along with interest. This decision was influenced by previous judgments supporting the appellant's entitlement to cum-tax benefit, including a case involving Bharti Airtel Ltd.

Issue 4: Imposition of penalties
Regarding the penalties imposed on the appellant by the adjudicating authority, the Tribunal considered the appellant's genuine belief that the sale of SIM cards was not a taxable activity due to legal uncertainties. Citing precedents, including the Bharti Airtel Ltd. case, the Tribunal set aside the penalties by invoking Section 80 of the Finance Act, 1994.

In conclusion, the appeal was disposed of with the Tribunal supporting the appellant's position on taxability and cum-tax benefit, leading to a recalculation of service tax liability, interest, and the setting aside of imposed penalties.