TMI Blog2012 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is found that there was no change of circumstances and no new facts came on record. The appellant's activity remained the same even relevant period during the period under correspondence and subsequently also. As such it seems to be a case of change of opinion on the part of the Revenue. When the entire facts were put before the Revenue it cannot be said that the appellant had any mala fide on their part to suppress the activity undertaken by them. Further, during the relevant period, some of the decisions of the Tribunal were holding that such activity of purchase and sale of SIM cards would not amount to providing business auxiliary services. If that be so, no mala fide intention can be attributed to the appellant so as to attrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority. He relied upon the Hon'ble Supreme Court's decision in the case of Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 STT 245 holding that the activity of purchase and sale of SIM cards amounts to providing service falling under the category of Business Auxiliary Service. He also relied upon the Kerala High Court decision in the case of Escotal Mobile Communications Ltd. v. Union of India [2006] 5 STT 46 as also on the judgment of Bharti Cellular Ltd. v. CCE [2007] 10 STT 323 (New Delhi - CESTAT). As regards limitation, Commissioner observed that inasmuch as the appellants have failed to discharge their service tax liability, the extended period is available to the Revenue. Accordingly, he confirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax. Accordingly he informed the appellant that as long as they are engaged in buying and selling the product, this activity is not liable to service tax. 5. Ld. AR appearing for the Revenue submits that the said correspondence between the appellant and the Revenue is of July/August 2005 and inasmuch as the period in the present appeal is from Jan. 2004 to March 2005, disclosure of the above facts cannot help the assessee to claim the benefit of limitation. He submits that during the relevant period, there was suppression on the part of the assessee and as such extended period of limitation was available to the Revenue in terms of the decision of High Court in the case of CCE v. Neminath Fabrics (P.) Ltd. 2010 (256) ELT 369 (G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Neminath Fabrics (P.) Ltd. ( supra ) is not applicable to the facts of the present case inasmuch as the issue before the Hon'ble High Court was as to whether the limitation of six months or five years Could be applicable in the case of visit of the officers in the assessee's factory. Otherwise also we note that the above correspondence reflects a complete bona fide on the part of the assessee but in which case extended period cannot be invoked. We also take note of the fact that during the relevant period, some of the decisions of the Tribunal were holding that such activity of purchase and sale of SIM cards would not amount to providing business auxiliary services. If that be so, no mala fide intention can be attributed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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