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Mr. B.P. Jain Versus Commissioner of Central Excise, Nashik

2016 (4) TMI 330 - CESTAT MUMBAI

Liability of Service tax - Commission received from BSNL for the sale of mobile sim cards - Lower authorities taxed the commission under "Business Auxiliary Service" - Held that:- the issue is no more res integra. By relying on the decision of Principal Bench of the Tribunal in the case of Commissioner of Central excise, Allahabad vs. M/s. Capital TV Service Centre [2015 (10) TMI 576 - CESTAT NEW DELHI], the appellant is not liable for service tax on commission received. Hence, the impugned orde .....

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ashik. 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding the Service Tax liability on the commission received from BSNL for the sale of mobile sim cards during the period from April, 2005 to December, 2008. 4. Both the lower authorities have come to the conclusion the amount received as commission by the appellant needs to be taxed under "Business Auxiliary Service". To come to such a conclusion, both the lower authorities have relied upon the .....

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overed under the definition of BAS given in Section 65 (19) of the Finance Act, 1994 and that as per the agreement between the appellant and BSNL the appellant has been appointed to do marketing and distribution of BSNL telecom service under its brand name and to discharge some obligations on behalf of BSNL such as maintain suitable organisation for marketing and distribution of products, carry out surveys, selling the BSNL product and registration of services of BSNL, answering queries relating .....

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ive while reiterating the contentions contained in Revenue's appeal, also referred to the judgement of Supreme Court in the case of Idea Mobile Communications Ltd Vs. CCE, Cochin [2011 (23) STR 433 (SC)] and the judgement of CESTAT Delhi in the case of CCE, Meerut Vs. Moradabad Gas Service 2013 (31) STR (Tri.-Del.)] which also relied upon the judgement of Supreme Court in the case of Idea Mobile Communications Ltd (supra). 6. We have considered the submissions of both sides. We find that CES .....

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Kerala High Court whereby and whereunder, the High Court allowed the appeal filed by the Commissioner of Central Excise & Customs, Cochin. 3. The issue which arises for our consideration in this appeal is whether the value of SIM cards sold by the appellant herein to their mobile subscribers is to be included in taxable service under Section 65(105)zzzx of the Finance Act, 1994, which provides for levy of service tax on telecommunication service OR whether it is taxable as sale of goods unde .....

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IM cards on the ground that activation is nothing but a value addition of the "goods" and thus comes under the definition of "goods" under the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "KGST Act") and accordingly levied sales tax on activation charges. The Department of Central Excise, Eranakulum (Service Tax Department) observed that a mere SIM card without activation is of no use and held that the appellant is liable to pay service tax on the .....

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