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TMI Blog2018 (5) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... le of pre-paid SIM cards was ultimately received by the subscribers. However, where the law prescribes the value of taxable service to be the gross amount charged by the service-provider, Service tax can be levied on that amount only. In the result, the assessee’s appeal succeeds and the same is allowed. Appeal dismissed - decided against Revenue. - ST/85388 to 85392/2014 - A/86020-86024/2018 - Dated:- 13-4-2018 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri M. Suresh, Dy. Commr. (A.R.) for Appellant Shri Gopal Mundra C.A. along with Shri Parth Parikh, Advocate for respondent Per: Ramesh Nair The appeal is directed against Order-in-Appeal No. 450 to 454/BPS/MUM/2013 dt. 28.10.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial so far as the value of the service for the purpose of computation of applicable service tax is concerned in terms of Section 67 of the Finance Act, 1994. The identical issue was decided in favour of the Respondent by CESTAT, Mumbai 2008 (11) STR 258 (TRI) and the department s appeal has been admitted by the Hon ble Mumbai High Court. Thus the correctness of the order of CESTAT is in jeopardy in terms of Supreme Court decision in case of UOI Vs. West Coast Paper Mills Ltd. 2014 (164) ELT 375 and the Tribunal s order does not have precedent value. That the order of Commissioner (Appeals) in favour of assessee relying upon the Tribunal order in terms of Supreme Court judgment in case of UOI Vs. Kamlakshi Finance 1991 (55) ELT 433 (SC) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gross amount paid by the person to whom the service is provided by the telegraph authority. Thus only after insertion of aforesaid explanation in case of service provided by way of recharge coupons or prepaid cards or the like, the value shall be the gross amount charged from the subscriber or the ultimate user of the service and not the amount paid by the distributer or any such intermediary to the telegraph authority. It is therefore clear that prior to this period the gross value of the service shall be the value received by the Respondent. The Tribunal in case of BPL Mobile Cellular Ltd. vs. Commissioner, Coimbatore 2007 (8) STR 546 while dwelling upon the same issue held as under: 4. Ld. Consultant for the assessee submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants. Admittedly, Service tax was paid on this amount. There are a few elements specified in the Explanation to Section 67, as includible in the value of taxable service. The Revenue has no case that any of these elements is applicable to the appellants. The Tribunal s decision in Tempest Advertising (supra) is clearly in support of the appellants. 6. It is true that the service rendered by the appellants by way of sale of pre-paid SIM cards was ultimately received by the subscribers. However, where the law prescribes the value of taxable service to be the gross amount charged by the service-provider, Service tax can be levied on that amount only. In the result, the assessee s appeal succeeds and the same is allowed. Now that asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal order in case of Brij Mohan Surinder kumar 2012 (25) STR 58 (TRI). In case of CCE CUS Vs. Philips Carbon Black Ltd. 2015 (320) ELT 575 (GUJ) the Hon ble High Court has held that mere pendency of appeal before Hon ble Supreme Court does not take away the binding effect of High Court Order. Same views were expressed by the Hon ble High Court of Mumbai in case of Mycon Construction Ltd. vs. UOI 2017 (320) ELT 514 (BOM). 8. Thus in view of our above observations and position of law during the case period, we hold that the Respondent are entitled for the refund and the appeal filed by the revenue is not sustainable. We therefore dismiss the appeals filed by the revenue. (Pronounced in court on 13/04/2018) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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