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Service Tax - Case Laws
Showing 41 to 60 of 133 Records
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2015 (6) TMI 869 - CESTAT BANGALORE
Construction of city - Services rendered for providing preferential location, "club or association service", "renting of immovable property service" and "short term accommodation service - Held that:- Pharma city is nothing but a commercial complex where Pharma industries have set up their units. The learned CA also relied upon the letter from the TRU dated 26.2.2010 to submit that in paragraph 8, the TRU has explained the service. However while going through the clarification, we find that para 8.1 (b) covers the activities undertaken by the appellant and, in our opinion, the activity under consideration in this case is covered by the clarification taking a view that service tax is leviable. Therefore, we find that prima facie appellant has no merit - Prima facie amounts collected by the appellant for the services rendered are covered by the decisions cited in [2012 (6) TMI 636 - Jharkhand High Court ]. Therefore, appellant has prima facie merit in their favour. - Partial stay granted.
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2015 (6) TMI 868 - CESTAT MUMBAI
Levy of penalty - appellant realizing its liability, on being so pointed out by the Revenue, have deposited the admitted tax along with interest - Goods Transport Agency Services - Works contract service - Held that:- there is no finding either in the Order-in-Original or in the Order-in-Appeal indicating any action or inaction on part of the appellant indicating towards collusion, fraud, active concealment of tax under the Finance Act, 1994. However, it appears that the appellant had turn over above ₹ 40 lakhs per annum under some of the financial year during the disputed period. In such circumstances, as provided under Section 44AB of Income Tax Act, the Books of Account were subject to tax audit and accordingly, it appears that the appellant was receiving the service of professionals like C.A. understanding tax obligations. But, there is no finding of any contumacious conduct on part of the appellant. - appellant is entitled to benefit under Section 73(3) of the Finance Act, 1994 and it appears that the show-cause notice was issued without proper consideration of the facts on record. In this view of the mater, penalty as reduced by the first appellate authority is dropped and set aside and the appellant will be entitled to refund or adjustment of the excess tax paid, which shall be calculated and granted by the adjudicating authority. - Decided in favour of assessee.
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2015 (6) TMI 829 - CESTAT NEW DELHI
Waiver of pre deposit - Sale purchase of SIM cards - Held that:- Decisions in the case of Daya Shankar Kailash Chand vs. CCE & ST, Lucknow reported in [2013 (6) TMI 340 - CESTAT NEW DELHI], CCE, Meerut vs. Moradabad Gas Service reported in [2014 (1) TMI 199 - CESTAT NEW DELHI], M/s Anand Sales Corporation and others vs. CCE, Kanpur, Allahabad and Lucknow reported in [2014 (2) TMI 621-CESTAT NEW DELHI] and Swastik Traders vs. CST, Lucknow reported in [2013 (12) TMI 849 CESTAT NEW DELHI] followed - Decided in favour of assessee.
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2015 (6) TMI 828 - CESTAT MUMBAI
Denial of refund claim - original documents of refund claim not submitted - concerned authority never have them opportunity to produce sample documents - Held that:- refund claim should not be rejected in the manner it has been done in this case - Matter remanded back with the directions that appellant to produce original documents for a period any two months for the period in dispute. - Authorities to process refund subject to direction given to assessee.
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2015 (6) TMI 827 - CESTAT MUMBAI
Refund under Notification No. 41/07-ST or No. 17/09-ST - Certain services notified on the date of claiming of refund and not on the date of export - Procedural infractions in respect of export documents - Held that:- This Tribunal in the case of East India Minerals Ltd. [2012 (8) TMI 22 - CESTAT, KOLKATA ] under somewhat identical circumstances, allowed refund for export related service under Notification no. 41/07-ST, since on the date of claim, the service was duly notified for this purpose,irrespective of the period of export.
As regards refund of Terminal Handling charges (THC) on the ground that invoice was raised by shipping line instead of port operator and the service provider being registered under a different service category or no proof regarding authorization from port authorities, I find that these issues stand concluded in favour of the appellant vide Board Circular dt. 12.3.09 as well as various case laws as referred to and relied upon by the Appellant, especially in the case of Riddhi Siddhi Gluco Biols Ltd. [2011 (8) TMI 187 - CESTAT, AHMEDABAD] and Fibre Bond Industries [2014 (3) TMI 372 - CESTAT MUMBAI]. As such, I hold that appellant is entitled to refund claim on THC services.
As regards refund claim on GTA services, It is rightly submitted by the Ld. Counsel for the Appellant, that it is almost impossible to mention export invoice details on incoming transportation documents, since export despatch is yet to take place, and this is only inward movement of containers to be used for exports, I find that container number mentioned on LR/transport documents tallies with export documents (running page 48 of appeal paper book) thereby proper co-relation stands established. Thus, the refund claim for FTA service is held to be allowable.
I further find that in terms of Board Circular No. 112/6/2009-ST dt. 12.3.09, procedural infractions in respect of export documents require to be ignored while granting refund. Once it is not in dispute that Services stand qualified for refund purpose, on the date of claim, and Service Tax was actually paid on specified service pertaining to export activity, in terms of the broad scheme of refund under Notification No. 41/07-ST, refund must be allowed and paid to the exporter. - Decided in favour of appellant.
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2015 (6) TMI 826 - CESTAT MUMBAI
CENVAT Credit - Insurance Services, Residential Telephone Connections and Cable Operator Services - Held that:- First show-cause notice is time barred in part, for the period prior to 30.9.2007, as the return for half year ended 30.9.2007 was still not due. - So far insurance service availed for insuring business risk (insurance to safeguard tax for infidelity and forging of securities), I hold the same to be allowable input service. - So far input service - Telephone connection is concerned, at residence of senior officials, the same is held to be essential input for the appellant. The appellant corporation have huge business risk, and have to be vigilant at all times. - As regards the cable operator's services, I hold the same as allowable input service, as the same is utilized in various offices of the appellant for being up-dated with the stock and money market. - Decided in favour of assessee.
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2015 (6) TMI 825 - CESTAT BANGALORE
Waiver of pre deposit - Construction of Complex Services - Circular 108/2/2009-ST dated 29.01.2009 - Held that:- construction and sale of individual residential flat with undivided share of land at a time or under separate agreements for equitable share of land or for construction of flat would not be covered by the service of Construction of Residential Complex prior to 01.07.2010. Moreover the Board Circulars issued during the relevant time as submitted by the appellants are also in favour of the appellants. Besides the above we also take note of the fact that appellant has paid an amount of ₹ 47,73,858/- before issue of show-cause notice and if the calculation adopted by the appellant is accepted according to the appellant entire amount has been paid. In view of the fact that appellants appear to have a prima facie case in their favour and also in view of the decisions of this Tribunal considered by us above, we consider that appellant has made a prima facie case for complete waiver. Accordingly the requirement of pre-deposit is waived and stay against recovery is granted. - Stay granted.
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2015 (6) TMI 824 - CESTAT NEW DELHI
Demand of service tax - Construction services vs Repair and maintenance service - Whether department can be travel beyond the show cause notice - Held that:- We find that the initially the show cause notice was issued to the appellant to demand service tax under the category of construction services which was demanded and demand of service tax was confirmed under the said category against the appellant which appellant has not disputed. Under section 84 of the Act, learned Commissioner revised the show cause notice to change the category of the service provided by the appellant which is not permissible at this stage. Same view has been held by this Tribunal in the case of Brij Mohan Surinder Kumar [2011 (6) TMI 566 - CESTAT, NEW DELHI].
We hold that learned Commissioner has travelled beyond the scope of show cause notice by revising show cause notice which is not permissible in law. Same view has been taken by Apex Court in the case of CC, Mumbai vs. Toyo Engineering India Ltd. [2006 (8) TMI 184 - SUPREME COURT OF INDIA]. - Decided in favour of assessee.
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2015 (6) TMI 789 - CESTAT MUMBAI
Manpower Recruitment and Supply Agency Services - Held that:- Issue is regarding the taxability of an amount paid by the appellants to one of the Sansta which is engaged in providing labour for harvesting and transportation of sugar cane to the appellants for sugar factory. It is the case of revenue that this activity will fall under the category of Manpower Recruitment and Supply Agency Services . We find that this issue is no more res integra. - In view of authoritative judicial pronouncements on the issue in hand, we find that impugned orders are unsustainable and liable to be set aside - Decided in favour of assessee.
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2015 (6) TMI 788 - CESTAT NEW DELHI
Denial of CENVAT Credit - Trading service - Invocation of extended period of limitation - Held that:- There was a clear scope for genuine confusion in the matter. Ld. Departmental Representative contends that if there was indeed a bona fide belief on the part of the appellants, they would have mentioned the trading activities in ST-3 returns under exempted category but that trading is an exempted service was clarified by an amendment to the Act only with effect from 01.04.2011. Further, several of the services in respect of which the credit is sought to be denied were those covered under sub-Rule (5) of Rule 6 of CENVAT Credit Rules. In these circumstances, the appellants have been able to make out a case that the extended period is not invokable. I find that the period involved in this case is 01.04.2005 to 31.03.2010 and the Show Cause Notice was issued on 16.05.2011. Thus, it is evident that no part of the impugned demand is within the normal period of one year with reference to the date of issue of Show Cause Notice and therefore I hold the demand to be time barred. - Decided in favour of assessee.
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2015 (6) TMI 787 - MADRAS HIGH COURT
Rejection of declaration under VCES 2013 - Statutory provision of Appeal under VCES - Adjudicating authority vs Designated authority - Held that:- In similar circumstances, the Punjab and Haryana High Court, in its decision in M/s.Barnala Builders s case [2013 (12) TMI 568 - PUNJAB AND HARYANA HIGH COURT ] , has categorically held that the order passed under VCES is appealable. We are unable to accept correctness of instructions issued by the Central Board of Excise and Customs, for the simple reason that after incorporation of the Service Tax Voluntary Compliance Encouragement Scheme into the Finance Act, all other provisions of the Act except to the extent specifically excluded, apply to proceedings under the scheme. The impugned order passed by the Deputy Commissioner of Central Excise and Service Tax would necessarily be appealable under Section 86 of the Indian Finance Act, 1994.
Adjudicating authority vs Designated authority - It is pertinent to note that though the second respondent has been described as a designated authority, however, a perusal of the order, dated 15.11.2013 passed by him clearly shows that he has dealt with the issue on merits regarding the eligibility of the assessee/petitioner to avail the VCES scheme and passed a detailed order, dated 15.11.2013 holding that since the petitioner had been issued with show cause notice dated 8.2.2012 demanding service tax of ₹ 21,44,299/- for the period from 1.4.2007 to 31.3.2011, which was confirmed vide original order, dated 28.3.2013 and as such in terms of Section 106(2) of the Act, 1994 and in view of Circular Nos.169 and 170, dated 13.5.2013 and 8.8.2013, the petitioner is not entitled to avail the said scheme. Therefore, when the authority, the second respondent herein has given such a categorical finding on going through the facts and circumstances of the case by applying his mind, his decision, in my considered opinion, would fall within the meaning of adjudication which is meant by settled law that giving or pronouncing a decision or order judicially and thereby, I have no hesitation to hold that the second respondent has acted as an adjudicating authority and not as a designated authority.
The remedy of appeal is a creation of a statute. In fact, making a provision of appeal is the statute is to give a hope of success to the aggrieved party who has been affected by the adverse order of the decision maker, who, while passing such order, might have misapplied the law, came to an incorrect factual finding, acted in excess of his jurisdiction, abused his powers, was biased, considered evidence which he should not have considered, or failed to consider evidence that he should have considered. To err is human and hence it cannot be expected that all the decision makers would be perfect in their approach in arriving at just conclusions. If any statute or scheme does not make the appeal provision, it would be nothing to mean that the order passed by the authority has become final and conclusive for all the purposes and thereby, giving uncontrolled and unquestionable powers to the said authority by virtue of which, he becomes as monopoly over the statute and will certainly act in an arrogant manner.
Commissioner of Central Excise (Appeals) directed to take up the appeal preferred by the petitioner and dispose of the same in accordance with law - Decided in favour of assessee.
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2015 (6) TMI 786 - CESTAT NEW DELHI
Default in remitting the service tax dues - Improper details in SCN - Specific taxable service not mentioned in SCN - Held that:- It is a axiomatic that a best judgment assessment under Section 72 could only be for ascertaining the quantum of the tax liability, in a context where the actual extent of liability cannot be determined with methematical precision on account of non-availability of relevant documents or financial records. There cannot be a best judgment assessment regarding the specific taxable service provided. There can be no best judgment, for instance as to whether the tax liability is for income tax, sales tax, excise duty, customs duty, service tax or professional tax. A conclusion as to the taxable event and the liability to tax under the appropriate fiscal legislation authorizing the levy and collection of such tax is a matter for determination with precision and clarity and not by a process of guess-work or speculation.
Neither the show cause notice dated 21/10/11 nor the impugned adjudication order dated 18/1/13 record any assertion/ conclusion whatsoever as to which particular or specific taxable service the appellant had provided. In the absence of an allegation of having provided a specific taxable service in the show cause notice and in view of the failure in the adjudication order as well, neither the show cause notice nor the consequent adjudication order could be sustained.
In any event officers are not handicapped and the Act provides ample powers including of search under Section 82 of the Act to obtain information necessary to pass a proper, disciplined and legally sustainable adjudication order. The disinclination to employ the ample investigatorial powers conferred by the Act is illustrative of gross Departmental failure and cannot afford justification for passing an incoherent and vague adjudication order. The failure to gather relevant facts for issuing a proper show cause notice cannot provide justification for a vague and incoherent show cause notice which has resulted in a serious transgression of the due process of law. - Decided in favour of appellant.
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2015 (6) TMI 785 - CESTAT NEW DELHI
Pre-licensing training and coaching to the prospective insurance agents - Sponsored by Insurance companies - Held that:- In the case of NIS Sparta Ltd. [2015 (1) TMI 504 - CESTAT NEW DELHI] it was held that the training imparted by the appellants does not fall under the ambit of Section 65(27) of the Finance Act, 1994 as the training imparted by the appellant is having the recognition of law and covered under exclusion clause of Section 65(27) of the Finance Act, 1994, therefore the appellant is not liable to pay service tax at all. We find that issue in hand is squarely covered by the decision of this Tribunal in the case of NIS Sparta Ltd. [2015 (1) TMI 504 - CESTAT NEW DELHI]. - Decided in favour of assessee.
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2015 (6) TMI 784 - CESTAT NEW DELHI
Irregular/ unauthorized availment of Cenvat credit - Charges of no separate accounts maintained while providing both taxable and exempted services - Held that:- If there was a doubt either regarding maintenance of separate accounts or utilizing credit on common inputs/input services, as required under Rule 6 (2) of the Cenvat Credit Rules, the authorities ought to have summoned the appellants records or should have verified from the appellant s premises, whether assessee had incorrectly pleaded to have maintained separate records while it did not. In the absence of any such notice issued and in view of the failure to have inspected the appellant s records, law does not authorize a conclusion of non- maintenance of separate accounts, without any basis.
There is not a single sentence in the entire adjudication order which records the evidence or material on the basis of which the Adjudicating Authority records the finding that the appellant failed to maintain separate accounts. In the absence of the Adjudicating Authority recording a clear finding that the assessee failed to maintain separate accounts and on the basis of some evidence in support of such conclusion, the inference of a failure to maintain separate accounts, is a finding of fact based on no evidence. It is therefore perverse.
On the basis of submission it is contended, that if it was found that the appellant had availed credit on inputs and input services which are common to both taxable and exempted services, the demand should be restricted to ₹ 1,81,386/-, which is the position that obtains on the basis of Okay Glass Industries vs. CCE, Kanpur [2015 (2) TMI 924 - CESTAT NEW DELHI ]. - Matter remanded back.
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2015 (6) TMI 783 - CESTAT MUMBAI
Extended period of limitation - Penalty u/s 78 - share broking services - Held that:- No case of contumacious conduct and/or deliberate default of provisions of Act or Rules is made out against the assessee. The transactions have been found to be duly recorded in the Books of Account, as found by the Audit party. Further, the appellants have immediately applied for amendment to registration certificate pursuant to Audit showing willingness to pay for difference in balance-sheet and ST-3 returns. Further, it is seen that after grant of amended certificate of registration have deposited Service Tax under the new head of classification immediately. Further, in the impugned order, the learned Commissioner (Appeals) have found certain amounts as not taxable under the head Management Consultant Service and have also found that the assessee is entitled to cum tax benefit as Service Tax has not been charged separately in the bills raised for underwriter s service, which escaped tax. In this view of the matter, I hold neither extended period of limitation is attracted nor any penalty is imposable under Section 76 or 78. Upholding the impugned order in part, I further set aside the penalty under Section 78 as imposed in the impugned order. - Decided in favour of assessee.
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2015 (6) TMI 749 - CESTAT MUMBAI
Denial of refund claim - Bar of limitation - Held that:- Following the ruling of the Division Bench of this Tribunal in the case of KPIT Cummins Infosystems Ltd. (2013 (7) TMI 124 (CESTAT-Mum)),and Hon'ble M.P. High Court in STI India Ltd. (2008 (10) TMI 246 - HIGH COURT OF MADHYA PRADESH AT INDORE), I hold that limitation will not apply for claim of refund of CENVAT Credit in case of export of service in terms of Section 11B of the Central Excise Act read with Rule 5 of the Cenvat Credit Rules. Further, it is held that the relevant date, if any, for the purpose of Section 11B for refund of CENVAT Credit in case of export of service will be one year from the date of receipt of remittance for the services rendered to the recipient of service outside India. - The adjudicating authority is directed to grant refund other than or rejected amount for non-production of input invoices - Decided in favour of assessee.
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2015 (6) TMI 748 - CESTAT NEW DELHI
Denial of CENVAT Credit - Belated service tax registration - Held that:- Since the eligibility of the appellant to the cenvat credit on the input services has not been disputed by the Department and the only ground taken for disallowance is on account of non-registration of the service provider, I am of the considered opinion that the same is not a valid ground for disallowance of the benefit of refund, to which, the appellant is legally entitled to. - in absence of a statutory provision prescribing the condition that registration is mandatory, the authorities cannot take the view that the assessee shall not be entitled to the benefit of refund. I also find that placing reliance on the said judgment of the Hon’ble Karnataka High Court, this Bench of the Tribunal in the case of M.L. Outsourcing Services (Supra) has allowed the cenvat credit by holding that registration of premises is not necessary for claiming the cenvat credit.
Denial of refund benefit on the courier service, without discussing the nature of utilisation of such service by the service provider cannot be a defensible ground to deny the benefit of refund, especially in view of the fact that the output service has been exported by the appellant. - appellant is entitled for refund of service tax on the disputed input services and accordingly, I set-aside the impugned order - Decided in favour of assessee.
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2015 (6) TMI 747 - CESTAT MUMBAI
Denial of refund claim - Input services used in Export of goods - Notification 41/2007-ST. - Held that:- It is very clear that the refund is payable on the taxable services which the exporter receives and uses for export. Further it has been clarified that the procedural violation by the service provider in the instant case the service provider is registered under Business Support Service or Business Auxiliary Service, (as the case may be) needs to be dealt with separately, independent of the process of refund. In other words, the procedural lacunae should not come in the way in granting substantial benefit which has been provided under the notification, which is - Central Board of Excise and Customs has clearly clarified that these services, which are rendered for the export of goods, refund is eligible under Notification 41/2007-ST. The only ground of appeal which has been raised by the departmental authorities is that the said services would not fall under the categories listed under Notification 41/2007-ST. In our considered view, the issue is no more res integra as the hon ble High Court of Gujarat in the case of Commissioner of Central Excise vs. AIA Engineering Pvt. Ltd. [2015 (1) TMI 1044 - GUJARAT HIGH COURT], on similar situation has held in favour of the assessee. This Tribunal in the case of Commissioner of Central Excise, Belapur vs. Pratap Re-Rolling Pvt. Ltd. [2014 (9) TMI 814-CESTAT MUMBAI] has held that the assessee is eligible for refund relying upon the same Board circular. - Decided against Revenue.
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2015 (6) TMI 741 - CESTAT MUMBAI
Denial of refund claim - Classification of service - Consulting Engineers Service or Maintenance or Repair Service - Difference of opinion - matter is placed before the Hon'ble President for reference to the Third Member on the following points:-
(i) Whether under the facts and circumstances, software will be treated as 'goods' w.e.f. 9.7.2004 in view of clarification vide Ministry of Finance, Department of Revenue's letter F.No. 256/1/2006-CX.4 dated 7.3.2006 read with Circular No. 81/2/2005-Service Tax, which provides that service tax is applicable on 'maintenance or repair of software service' under Section 65(105)(zzg) and also in view of ruling of the Hon'ble Supreme Court in the case of TCS (supra), wherein it was held that software is goods, the appellant have provided taxable services under Section 65(105) (zzg) read with Section 65(64) i.e. 'management, maintenance or repair', being services (i) maintenance of software, (ii) testing services, (iii) re-engineering services under Section 65(105)(r), (iv) consultation and management in respect of ERP software implementation, and accordingly entitled to refund, as claimed, the services being admittedly exported.
And
As the appellant have rendered taxable services under Section 65(105)(zzg), the appellant have rightly availed CENVAT Credit under Rule 5 of Cenvat Credit Rules, 2004 as held by Member (Judicial).
Or
1) Whether refund of Cenvat Credit under Rule 5 of the Cenvat Credit Rules is available when Rule 3 permitted credit on input services only to provider of taxable services.
2) Whether output services provided by the appellant are covered under the taxable service of "Maintenance or Repair" when the activity involved development and designing also of the software.
3) When the Commissioner (Appeals) did not examine all the contracts in order to decide whether the activity is of 'maintenance or repair' only, should not the case be remanded back to him to enable him to examine all the contracts before arriving at a decision on the issue at 2 above.
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2015 (6) TMI 740 - CESTAT MUMBAI
Valuation - whether during April 2003 to September 2006 distribution of free of recharge voucher attracts service tax liability or otherwise despite the fact that the recharge voucher are given free of cost to the dealers as consideration for commission. - Held that:- Appellant is discharging the service tax liability under the category of "Telephone Services" on an amount received by them from distributors/dealers for the sale of prepaid SIM Cards; the SIM Cards are sold to the distributors/dealers on MRP and in lieu of the commission payable to them, appellant issues recharge vouchers to that amount which is commission, as free of cost. It is also undisputed that the dealers have recovered the amount as sale of such recharge vouchers from the ultimate subscriber/customer.
Value of any taxable service shall be gross amount charged by the service provider for such services rendered by him. In the case in hand, during the relevant period, the appellant herein being service provider has discharged the service tax liability on the prepaid SIM Cards sold by them to the distributors/dealers. The sale of such prepaid SIM Cards on the MRP value is undisputed and discharge of service tax liability for services rendered on such sale is also accepted by revenue. It is to be noted that the recharge voucher are distributed free of cost, appellant has not received any amount towards the recharge voucher, though the distributors/dealers have sold the recharge vouchers. In our view distribution of recharge voucher fee of cost to the distributors/dealers would in a way amount to giving commission to the dealer for the transactions of sale of prepaid SIM Cards for the appellant. It can also be noticed that during the relevant period the Explanation as per the Section 67 of Finance Act, 1994 also do not indicate inclusion in that gross value of any cost towards free distribution made by the service provider. - impugned order is unsustainable and is liable to be set aside - Decisions in the cases of BPL Mobile Cellular (2007 (6) TMI 107 - CESTAT, CHENNAI) and Tata Tele Services Ltd. (2015 (4) TMI 80 - CESTAT MUMBAI) followed - Decided in favour of assesee.
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