TMI Blog2018 (12) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided - Demand of service tax upheld. Time Limitation - Held that:- The appellant have not put forward any evidence to show that the fact of ‘sale of SIM card’ etc. and its value not being included in the taxable value, was in the knowledge of the department - Since the appellant have been working under self-assessment mechanism and if they are having any doubt in their mind, they should have sought clarification from the department regarding the includibility of the sale value of SIM and other plans in the taxable value for levy of Service Tax. However, they have failed to do that - plea that the demand is hit by period of limitation is not acceptable. Appeal dismissed - decided against appellant. - Service Tax Appeal No. 54967 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 (23) STR 433 (SC)]. The relevant extract of same are reproduced below: 15. As against the order passed by the adjudicating authority, the appellant assessee took up the matter in appeal before the Commissioner of Central Excise Customs, Cochin. The appellate authority upheld the findings of the adjudicating authority. The assessee took up the matter before the CESTAT, Bangalore. The CESTAT vide its order dated 25-5-2006 held that the levy of service tax as demanded is not sustainable for the reason that the assessee had already paid the sales tax and therefore it follows that service tax is not leviable on the item on which sales tax has been collected. 17. The High Court has given cogent reasons for coming to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise found payable and a liability accrues on the assessee. The charges paid by the subscribers for procuring a SIM Card are generally processing charges for activating the cellular phone and consequently the same would necessarily be included in the value of the SIM Card. 19. There cannot be any dispute to the aforesaid position as the appellant itself subsequently has been paying service tax for the entire collection as processing charges for activating cellular phone and paying the service tax on the activation. The appellant also accepts the position that activation is a taxable service. The position in law is therefore clear that the amount received by the cellular telephone company from its subscribers towards SIM Card will for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax against the appellant. 6. On the issue of limitation which has been mentioned by the appellant in their appeal, we find that the appellant have not put forward any evidence to show that the fact of sale of SIM card etc. and its value not being included in the taxable value, was in the knowledge of the department. Since the appellant have been working under self-assessment mechanism and if they are having any doubt in their mind, they should have sought clarification from the department regarding the includibility of the sale value of SIM and other plans in the taxable value for levy of Service Tax. However, they have failed to do that and therefore the plea that the demand is hit by period of limitation is not acceptable and we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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