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2025 (5) TMI 650 - HC - Service TaxLevy of service tax - distribution of pre-paid and post-paid cellular connections (SIM cards) by a telecom service provider - HELD THAT - The issue stands covered by a series of orders of this Court in R. VENKATARAMANAN VERSUS OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE KARAIKAL BHARAT SANCHAR NIGAM LIMITED (BSNL) KUMBAKONAM. 2020 (1) TMI 1724 - MADRAS HIGH COURT THE COMMISSIONER OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX BHARAT SANCHAR NIGAM LIMITED (BSNL) 2020 (1) TMI 1725 - MADRAS HIGH COURT wherein it was held that Since the Petitioner has cases in their favour the Petitioner should approach the First Respondent for Adjudication of Show Cause Notice under the Finance Act by citing the decisions . It may also be relevant to refer to the judgment of the Hon ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. vs. The State of Andhra Pradesh Revenue Department 2023 (5) TMI 815 - SC ORDER wherein it was held that It was held by High Court that the transactions relating to telephone sets modems and caller IDs instruments are subject to sales tax levy . In view thereof the petitioner would submit his reply to show cause notice within four weeks from the date of receipt of a copy of this order. Respondents shall pass orders taking into account the objections filed and after affording the petitioner a reasonable opportunity of hearing in accordance with law and bearing in mind the above judgments. Petition disposed off.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court in this matter are:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Levy of Service Tax on Distribution of SIM Cards Relevant legal framework and precedents: The Finance Act, 1994, particularly Section 65(105)(zzzx), defines "telecom services" and subjects them to service tax. The Court referred extensively to prior orders of this High Court and appellate authorities, as well as to the Supreme Court's rulings in cases such as "Idea Mobile Communication Ltd. vs. CCE & Customs" and "Bharat Sanchar Nigam Ltd. vs. The State of Andhra Pradesh Revenue Department." These precedents clarify the classification of telecom services and related goods for tax purposes. Court's interpretation and reasoning: The Court observed that the issue has been consistently addressed in a series of orders by this Court and appellate authorities, which have held that the services provided by telecom operators, including the distribution of SIM cards, fall within the ambit of taxable services under the Finance Act. The Court noted that SIM cards, while physical items, are integrally connected to the service provided and are not to be treated merely as goods for sales tax purposes. Key evidence and findings: The petitioner's challenge was to a show cause notice proposing service tax on SIM card distribution. The Court took note of the extensive prior adjudications and statutory interpretations that support the levy of service tax on such activities. The Court also considered the petitioner's submissions and the respondents' position. Application of law to facts: Applying the settled legal principles, the Court found that the distribution of SIM cards is a taxable service activity and that service tax is leviable. The Court relied on the statutory definition of telecom services and the established jurisprudence that SIM cards are part of the service package rather than standalone goods. Treatment of competing arguments: The petitioner argued against the levy, contending that SIM cards should be treated as goods subject to sales tax, not service tax. The Court, however, relying on authoritative precedents, rejected this contention, emphasizing the integrated nature of SIM cards with telecom services and the legislative intent reflected in the Finance Act. Conclusions: The Court concluded that the show cause notice proposing service tax on SIM card distribution is legally sustainable and that the petitioner is entitled to file a reply and be heard before any final order is passed. Issue 2: Classification of SIM Cards and Related Items as Goods or Services Relevant legal framework and precedents: The distinction between goods and services is critical for determining the applicable tax regime. The Court referred to the Supreme Court's judgment in "Tata Consultancy Services vs. State of A.P.", which held that physical media embedding software are goods, and to "Idea Mobile Communication Ltd. vs. CCE & Customs," which clarified that telecom services are taxable services. The Court also cited the Andhra Pradesh High Court's decision analyzed by the Supreme Court, which held that SIM cards, recharge coupons, fixed monthly charges, and value-added services are not goods but services. Court's interpretation and reasoning: The Court adopted the reasoning that SIM cards and associated telecom services do not qualify as goods for sales tax but are services under the Finance Act. The Court highlighted that the physical SIM card is inseparable from the telecom service it enables, and therefore, the transaction is essentially a service provision. Key evidence and findings: The Court reviewed the factual matrix and prior judicial findings that distinguished between physical goods like telephone handsets (which attract sales tax) and SIM cards (which do not). The Court noted that deposits and equipment like telephone sets are taxable under sales tax laws, whereas SIM cards and value-added services are not. Application of law to facts: The Court applied the legal principles to the facts, confirming that SIM cards and related telecom services fall under the service tax net and are exempt from sales tax classification. Treatment of competing arguments: The petitioner's reliance on the argument that SIM cards are goods was addressed by the Court through reference to binding precedents, which favored the classification as services. The Court also considered the revenue's position that sales tax applies to physical telecom equipment but not to SIM cards. Conclusions: The Court upheld the classification of SIM cards and related telecom services as services liable to service tax, not as goods subject to sales tax. Issue 3: Procedural Direction Regarding Show Cause Notice Relevant legal framework and precedents: Principles of natural justice and statutory procedure require that the petitioner be given an opportunity to respond to the show cause notice before any final adjudication. Court's interpretation and reasoning: The Court directed the petitioner to file a reply to the show cause notice within four weeks and mandated the respondents to pass orders after considering the petitioner's objections and affording a reasonable opportunity of hearing. Key evidence and findings: The Court noted that the petitioner had not yet filed a reply and that the respondents had not passed any final order. Application of law to facts: The Court ensured procedural fairness by ordering compliance with due process before any tax demand is finalized. Treatment of competing arguments: No significant dispute arose regarding procedural fairness; the Court's direction was in line with established principles. Conclusions: The petitioner was granted the opportunity to respond, and the respondents were directed to decide the matter in accordance with law and relevant precedents. 3. SIGNIFICANT HOLDINGS "The issue stands covered by a series of orders of this Court... wherein it was held that SIM Cards, Rechargeable Coupons, Fixed Monthly Charges and Value-Added Services... are not 'goods'." "Services provided by 'Telecom Service Provider' are subjected to levy under the Finance Act, 1994 [Section 65(105)(zzzx)]." "No interference is called for especially in view of the fact that the High Court has taken note of all the decisions on the point." "The petitioner would submit his reply to show cause notice within four weeks... Respondents shall pass orders taking into account the objections filed and after affording the petitioner a reasonable opportunity of hearing, in accordance with law and bearing in mind the above judgments." Core principles established include:
Final determinations:
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