TMI Blog2007 (2) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... e engaged in providing cellular phone services to their subscribers and, for the purpose of payment of Service tax, they were registered with the department under the category "Telephones". 2. A subscriber desiring to have cellular phone connection had to be in possession of a hand-set. He could procure the hand-set from the appellants or others in the open market. The appellants would give connection to the subscriber by activating the handset, for which purpose a Subscriber Identity Module (SIM, for short) card was supplied by the company and inserted into the hand-set. The company collected the price of the SIM card and activation charge separately from the subscriber. They paid Service tax only on the latter and did not pay such tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax is paid. Today, learned Counsel for the assessee has filed a compilation of documents which, according to them, would go to prove that, during the period of dispute, Sales tax was paid on the price of SIM cards by the appellants. Learned Counsel would rely on the Apex Court's judgment in BSNL v. Union of India Ors. [2006 (2) S.T.R. 161 (S.C.) = AIR 2006 S.C. 1383], wherein one of the issues which came up for consideration was whether SIM card was "goods" within the definition of this term in the Kerala General Sales Tax Act. Their Lordships were considering, inter alia, appeals against a judgment of the Kerala High Court rendered in the case of Escotel [2006 (2) S.T.R. 567 (Ker.)]. The issue arising from the High Court's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of fact should be looked into by the assessing authorities and, accordingly, the matter was remanded to the Sales Tax authorities. 5. The question before the Sales Tax authority under the Sales Tax Act and the one before the Service tax authority under the Finance Act, 1994, insofar as a SIM card is concerned, are essentially the same, i.e., whether the SIM card is "goods" on which Sales tax is leviable or whether it is part of a service on which Service tax is leviable. A decision on the issue raised before us will, therefore, have to be taken by the original authority after considering the claim of the appellants, which is said to be supported by documentary evidence. 6. In the result, the impugned order is set aside and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
