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TMI Blog2024 (5) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... t be subject to levy of service tax under Business Auxiliary Services. The Tribunal in the case of MESSRS HARI OM MARKETING VERSUS C.C.E. S.T. -VADODARA-I [ 2023 (6) TMI 998 - CESTAT AHMEDABAD] had considered the very same issue and followed the decision in the case of M/S. PATWARI ELECTRICALS VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS SERVICE TAX, AURANGABAD [ 2016 (5) TMI 845 - CESTAT MUMBAI] . So also, it was observed that the High Court of Aurangabad in the case of COMMISSIONER CENTRAL EXCISE, LUCKNOW VERSUS M/S CHOTEY LAL RADHEY SHYAM [ 2017 (9) TMI 509 - ALLAHABAD HIGH COURT] had set aside the demand upholding the view taken by the Tribunal. The demand cannot sustain. In the result, the impugned order is set aside. The appeal is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri N. Satyanarayanan appeared and argued for the appellant. The findings in the impugned order was reiterated. 4. Heard both sides. 5. The issue to be decided is whether the margin / discount / commission received by the appellant for sale of SIM cards is subject to levy of service tax under Business Auxiliary Services. 6. The very same issue was considered by the Tribunal in the case of M/s. Patwari Electricals Vs. Commissioner of Central Excise, Customs Service Tax, Aurangabad [2016 (5) TMI 845-CESTAT MUMBAI] and it was held by the Tribunal that it was mere purchase and sale of SIM cards and the amount earned by the appellant cannot be subject to levy of service tax under Business Auxiliary Services. 7. The Tribunal in the case of M/s. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, we find that the appellant is only engaged in purchase and sale of SIM cards and recharge coupons and his relation with BSNL is of principal to principal basis. The appellant cannot be termed as an agent of BSNL. In view of this, the finding of impugned order is therefore not consistent with law and the catena of judgments delivered by the Tribunal and High Court. The Judgment cited above by the learned counsel for the appellant squarely cover the case of the appellant to the fact that appellant is only engaged in trading activity and does not render any taxable service in the category of business auxiliary service . 7. By following the decision cited above, we set aside the impugned order and allow the appeal of the appellant with con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M card belonging to BSNL where BSNL has discharged the Service Tax on the full value of the SIM cards, does not amount to providing business auxiliary services and confirmation of demand on the distributors for the second time is not called for. By following the said decision, we set aside the impugned order and allow the appeal with consequential relief to the appellants. 5. Then, again similar controversy came up in Central Excise Appeal No. 21 of 2013, Commissioner Central Excise v. M/s. Daya Shankar Kailash Chandra Mal [2014 (34) S.T.R. J99 (All.)+ and a Division Bench of this Court consisting of Hon'ble Rajiv Sharma and Hon'ble Dr. Satish Chandra, JJ, vide judgment dated 25th July, 2013 dismissed appeal at admission stage passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel for the appellant, we are of the opinion that no substantial question arises in the instant appeal, in view of the decisions of the Apex Court in the case of Martend Food Dehydrates Pvt. Ltd. vide final order dated 6-11-2012, wherein it was held that activity of purchase and sale of SIM Card belonging to BSNL where BSNL has discharged the service tax on the full value of the SIM cards does not amount to providing Business Auxiliary Service. Therefore, no interference is called for. Accordingly, the appeal is dismissed at the admission stage itself. 6. Judgment of Supreme Court in Idea Mobile Communication Ltd. [2011 (23) S.T.R. 433 (S.C.)] (supra) has been considered by Tribunal, Principal Bench, New Delhi and similar issue has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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