TMI Blog2017 (12) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... riod and penalty to that extent is not sustainable against the Appellant. Demand of service tax - International roaming services provided to persons coming to India - Held that: - the subscribers are not of the Appellant but of foreign telecom network operator. There is no contract between the Appellant and subscriber of foreign telephone operator. In such case when the service has not been given to any subscriber, the service tax demand cannot be made - demand set aside. Business auxiliary Service - Held that: - the services of giving space on towers for erection of antenna, usage of tower rooms for installation of equipments, usage of generator sets etc by the Appellant would fall under the category of Business Support Service - the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) recovery of amount of ₹ 52,410/- on illegally availed cenvat credit of education cess paid on customs duty. 3. The adjudicating authority dropped the demand in respect of interconnectivity charges holding that the same is not liable to tax. He also dropped partial demand on services provided to international inbound roaming subscribers on the ground that in terms of notification no. 36/2007 ST dt. 15.06.2007 the demands for the period 1.07.1994 to 14.01.2007 has been waived under section 11C of the Central Excise Act read with section 83 of the Finance Act and confirmed demand of ₹ 67,70,619/-. Further demand under the category of Business Auxiliary Service was confirmed on providing infrastructure tower facilities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o India, he submits that in case of M/s Vodfone Essar Cellular Ltd. - 2013 (31) STR 738 (TRI- MUM) and Vodafone India Ltd. - 2015 (37) STR 286 (TRI) the tribunal has held that the said services shall be considered as export of service. He also placed reliance upon the Tribunal judgment in case of Fascel Limited - 2007 (7) STR 29 (TRI) in support of his submission. He submits that in view of the aforesaid judgments the demands are not sustainable. 4.2 He further submits that the demand under the category of Passive Telecom Infra Service is on infrastructure services provided to other cellular operators viz. use of Appellants tower for erection of antenna, usage of tower rooms for installation of equipments, usage of generator sets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Appellants own case viz IDEA MOBILE COMMUNICATION LTD. Vs. COMMR. OF C. EX. CUS., COCHIN - 2011 (23) S.T.R. 433 (S.C.) in Civil Appeal No. 6319 of 2011, decided on 4-8-2011, the Honble Apex court held service tax to be payable. However since the issue was in dispute in many cases before the Tribunal, particularly in Appellants own case in Idea Mobile Communication Ltd. - 2012 (26) STR 27 (TRI), the tribunal set aside the demands for the extended period holding as under : 11. By applying the ratio of law declared in the above decisions, we find that since the earlier decisions of the Tribunal were in favour of the assessee, it has to be held that there was bona fide doubt about the non inclusion of the cost of SIM card in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be made. Further we find that the issue is no more res-integra in the light of the Tribunal judgment in case of Vodafone Essar Cellular Ltd. - 2013 (31) STR 738 (TRI- MUM); Vodaphone India Ltd. - 2015 (37) STR 286 (TRI) and Fascel Limited - 2007 (7) STR 29 (TRI) wherein the demands were set aside. We, therefore, set aside the demand on International roaming services provided to persons coming to India. 6.2 As regard demand under the category of Business auxiliary Service, we are of the view that the services of giving space on towers for erection of antenna, usage of tower rooms for installation of equipments, usage of generator sets etc by the Appellant would fall under the category of Business Support Servicein terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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