9911796707
TMI Blog2023 (12) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... nication services provided by a Telegraph Authority to a person was taxable. In the instant case, FTOs located abroad providing the connectivity services would not fall within the ambit of Telegraphy Authority as defined under Section 65(111) of the Finance Act, 1994 read with Section 3(6) of the India Telegraph Act, 1885. Accordingly, it is observed that the charges paid for the services rendered by the FTOs cannot be taxed under head Business Auxiliary Service on the Appellant. The issue is no longer res-integra as the issue has been settled by the decision of the CESTAT, New Delhi in case of one of the Appellant s group Companies, viz. VODAFONE ESSAR MOBILE VERSUS C.S.T., DELHI [ 2017 (9) TMI 359 - CESTAT NEW DELHI] . The Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed FTO can automatically make and receive calls, send and receive data, or access other services including home data services while travelling outside the geographical coverage area of the home network, by means of using a visited network. For providing these services, the FTO charges the Appellant at a rate as agreed between the parties as per the terms of the agreement. The Appellants pay the foreign telecom operators (FTOs) in foreign currency. 2. A Show Cause Notice dated 19.12.11 was issued to the Appellant demanding service tax amounting to Rs. 61,69,700/- under the category "business auxiliary services" as defined under Section 65(19) of the Finance Act, 1994 along with interest under Section 75 and penalty under Section 78 of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... munication Service'. It is submitted that during the relevant period only telecommunication services provided by a 'Telegraph Authority' to a person was taxable. In the instant case, FTOs by no means of construction can be brought within the ambit of 'Telegraphy Authority' as defined under Section 65(111) of the Finance Act, 1994 read with Section 3(6) of the India Telegraph Act, 1885, hence, under no circumstances roaming charges can be taxed under the head "Business Auxiliary Service". 4. It is submitted that the instant issue is no longer res-integra and has been settled by the CESTAT, New Delhi in case of one of their group Companies, viz. Vodafone Essar Mobile vs. CST, New Delhi, 2017 (6) GSTL 67 (Tri-Del). The Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviding connectivity services to their subscribers when they are abroad. We find that the services are appropriately classifiable as 'Telecommunication Service'. During the relevant period, only telecommunication services provided by a 'Telegraph Authority' to a person was taxable. In the instant case, FTOs located abroad providing the connectivity services would not fall within the ambit of 'Telegraphy Authority' as defined under Section 65(111) of the Finance Act, 1994 read with Section 3(6) of the India Telegraph Act, 1885. Accordingly, we observe that the charges paid for the services rendered by the FTOs cannot be taxed under head "Business Auxiliary Service" on the Appellant. 10. We find that the issue is no longer r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her taxable service. Further, we also note in parallel situation examining the tax liability of an activity, which is otherwise covered, in a tax entry, can be taxed under the category of another tax entry has been examined by the Hon'ble Kerala High Court in the case of Federal Bank Ltd. (supra). Here also we note that the telecommunication service liable to tax has been exhaustively defined and admittedly, the services now under consideration are specifically covered in the said tax entry. We also note that the ld. Counsel for the appellant submitted that the services rendered by foreign telecom service provider to their subscribers while roaming, are subject to VAT/other liable tax in the concerned country in terms of agreement. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
