2019 (6) TMI 852 - AT - Service Tax

Levy of service tax - commission received from the DTH operators for sale of recharge coupons - DTH operators have discharged service tax on the M.R.P of the recharge vouchers which, logically includes the commission which the appellant has received - Notification No.25/2012-ST - HELD THAT - It is true that the appellant is providing services to the DTH operators and is getting commission for such services. If the appellant had paid service tax on such commission, the main DTH operator could have availed cenvat credit of the same thereby proportionately reducing the amount paid in cash by the DTH operator. Therefore the entire exercise is also revenue-neutral. On the SIM cards, recharge coupons etc., where the service tax has been paid on the M.R.P by the main operator the commission agent / distributor need not pay service tax on the commission received by him because commission also forms part of the M.R.P. on which service tax has already been discharged. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Liability to pay service tax on commission received from DTH operators for sale of recharge coupons.
2. Applicability of previous judgments on similar cases involving telecom operators to the current case.
3. Interpretation of Notification No.25/2012-ST exemption in relation to the services provided.

Analysis:
1. The appellants, engaged in services to DTH broadcasting providers, received commission from DTH operators for selling recharge coupons. The department contended that this commission is taxable under "Business Auxiliary Service." Show cause notices were issued, demands confirmed by lower authorities, and upheld by the first appellate authority, leading to the appeals.

2. The main issue was whether the appellants are liable to pay service tax on the commission received from DTH operators for selling recharge coupons when the operators have already paid service tax on the recharge vouchers' M.R.P. Previous judgments on similar cases involving telecom operators were cited, emphasizing that if service tax has been paid on the M.R.P, no additional tax should be levied on the commission received.

3. The department argued that the exemption notification only applied to SIM cards or recharge coupon vouchers of telecom operators, not DTH operators. They contended that the commission received by the appellants falls under "Business Auxiliary Service," necessitating service tax payment. The tribunal, however, reasoned that the logic applied in previous judgments should also be extended to the current case, as the commission forms part of the M.R.P on which service tax has been discharged.

4. The tribunal observed that the judgments related to telecom operators' SIM cards were applicable to the current scenario, despite the difference in services provided. It was emphasized that if service tax has been paid on the M.R.P, no additional tax should be levied on the commission. The tribunal ruled in favor of the appellants, setting aside the impugned orders and allowing the appeals, citing the precedent set by previous decisions and ensuring revenue neutrality in the process.

5. In conclusion, the tribunal held that the appellants were not liable to pay service tax on the commission received for selling recharge coupons, as the main DTH operators had already discharged service tax on the M.R.P. The judgments and logic applied in similar cases involving telecom operators were deemed applicable to the present case, leading to the setting aside of impugned orders and allowing the appeals with consequential benefits.